Innocent Spouse vs. Injured Spouse: Five Differences You Need To Know

Often times innocent spouse and injured spouse are used interchangeably, though they are two completely different types of relief. Knowing the difference between the two will save you the time and headache of having to resubmit your claim because you did it wrong the first time. Below are five differences between innocent spouse relief and injured spouse relief.

SO, WHAT’S THE DIFFERENCE?

1. Currently Married or Divorced/Legally Separate
   1. More often than not innocent spouse relief will typically be used by someone who is legally separated or divorced from their spouse.
   2. Injured spouse will generally be used by someone still married to their spouse.
2. The Use of Innocent Spouse vs. Injured Spouse
   1. According to Internal Revenue Code (“IRC”) § 6015, innocent spouse relief is used to separate joint and several liability.  In order to receive relief you must generally prove that you had no knowledge of, or reason to know of, the under-reporting of income, overstatement of deductions or erroneously claimed tax credits by your spouse on a married filing joint return.
   2. According to IRC § 6402, injured spouse relief is used when your portion of a tax refund from a jointly filed tax return is being offset and applied to a debt your spouse incurred prior to you being married and that you are not liable to pay.

1. Types of Debts That Apply

1. 1. Innocent Spouse relief is used solely for the purpose of relieving yourself from an IRS tax debt you are jointly liable for.

1. 1. Injured Spouse can be used when your portion of the tax refund is being offset and applied to not only an IRS tax debt but also other non-IRS tax debts such as state income tax, state unemployment compensation, child support, spousal support, and student loan debt

1. The Forms Used to File
   1. Innocent spouse relief is filed using Form 8857 Request for Innocent Spouse Relief. This form can also be used when submitting a claim for relief by separation of liability, equitable relief, and signature under duress.
   2. Injured spouse relief is filed using Form 8379 Injured Spouse Allocation and will take you through the process of allocating what income, assets, deductions, and credits are attributed to you and what is attributed to your spouse to determine what part of the refund you may be able to keep.

1. When Innocent Spouse vs. Injured Spouse Is Typically Filed

1. 1. Innocent spouse relief is filed once the IRS has actually alerted you, generally through an audit, to the fact that they are going to jointly assess you and your spouse for a tax debt due to under-reported income, the overstatement of deductions, or the erroneous claiming of tax credit. For more information on filing time for innocent spouse relief see blog post 5 Things To Know Before Filing For Innocent Spouse Relief.

1. 1. Injured spouse relief is typically filed with the married filing joint return. However, if your spouse has not made you aware of the fact that they have debts that might cause your refund to be kept, you can still file for injured spouse relief after the return is filed. For more information on filing time for injured spouse see blog post Tax Refund Offset Going to Spouse’s Debt? Injured Spouse Relief May Help.

It is important to be aware that in a community property state such as California injured spouse relief can be somewhat difficult to achieve given the nature of the laws. If you’re unfamiliar with community property laws in California, see blog post Community Property and the Federal Tax Implications.

Both innocent spouse and injured spouse relief are effective tools for helping deal with a tax liability if your circumstances apply. However, dealing with the IRS is not always a walk in the park and can sometimes be very challenging. If you find yourself getting in over your head, don’t hesitate to consult legal representation about your options and rights as a taxpayer.

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