If you filed a joint tax return and the government used your federal tax refund to pay your spouse’s debt, you may be able to recover your portion of the refund.
The injured spouse form— IRS Form 8379, Injured Spouse Allocation—allows an eligible spouse to request their share of a joint tax overpayment. You can use the form when the government uses, or expects to use, the refund to pay certain past-due debts owed by your spouse.
It is important to understand the difference between injured spouse relief and innocent spouse relief. Injured spouse relief deals primarily with your share of a refund that goes toward your spouse’s debt. Innocent spouse relief addresses whether you should be responsible for certain taxes associated with your spouse or former spouse.
What Is an Injured Spouse?
An injured spouse generally files a joint federal income tax return and has a right to part of the joint overpayment. However, the government uses some or all of that overpayment to pay a legally enforceable debt that belongs to the other spouse.
These debts may include:
- Past-due federal taxes
- Past-due state income taxes
- Certain state unemployment compensation debts
- Past-due child support
- Certain federal nontax debts
Your spouse having one of these debts does not automatically mean you lose your portion of the refund. If you qualify, Form 8379 gives the IRS the information it needs to determine your share of the joint overpayment.
How Does Form 8379 Work?
Suppose a married couple files jointly and expects a $5,000 refund. One spouse owes a qualifying past-due debt, so the government uses the refund to pay that debt.
Now suppose most of the couple’s federal income tax withholding came from the other spouse’s wages. That spouse may have a right to recover part of the refund.
However, the IRS does not simply return that spouse’s withholding or divide the refund 50/50. Instead, the IRS considers each spouse’s income, deductions, credits, withholding, payments, and other applicable tax items.
Generally, the IRS assigns income and withholding to the spouse who earned the income. Joint income and expenses may require additional calculations. The same applies to certain dependent-related credits, estimated tax payments, and other tax items.
Every tax return is different. For that reason, you should not estimate an injured spouse refund simply by dividing the original refund in half.
Special Rules for Community Property States
Additional rules may apply if you live in a community property state. The IRS identifies Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin as community property states.
State community property laws can affect how the IRS allocates income, payments, and other tax items between spouses. These rules can also affect how much of the overpayment the injured spouse receives.
When and How to File Form 8379
You do not necessarily have to wait for the government to take your refund. You can file Form 8379 when you learn that the government may use your share of a joint refund to pay your spouse’s qualifying debt.
You can file Form 8379 with your original joint tax return or an amended joint return when applicable. You can also file it separately after the IRS processes your joint return.
You generally need to file a separate Form 8379 for each tax year in which you request an injured spouse allocation.
The IRS also sets a deadline for filing the form. Generally, you have three years from the due date of the original return, including extensions. Alternatively, you may have two years from the date you paid the tax that the government later offset. The IRS uses whichever deadline is later. Certain circumstances may extend this period.
If you file Form 8379 separately, the IRS instructs you to include copies of Forms W-2 and W-2G for both spouses. You should also include Forms 1099 that show federal income tax withholding.
Do not attach another copy of the joint tax return that you previously filed. The IRS warns that including another copy may cause processing delays.
How Long Does Form 8379 Take to Process?
The IRS generally estimates about 11 weeks to process Form 8379 when you file it electronically with a joint return. The estimated processing time increases to about 14 weeks when you file it with a joint paper return.
If you file Form 8379 separately after the IRS processes your joint return, the IRS estimates about eight weeks.
These are general processing estimates. Errors, missing information, or other issues can increase the processing time.
Injured Spouse vs. Innocent Spouse
The easiest way to understand the difference is to look at the problem you are trying to solve.
Injured spouse relief applies when the government uses, or may use, your share of a joint refund to pay your spouse’s separate debt. Form 8379 generally applies to this situation.
Innocent spouse relief addresses a different problem. The IRS may try to make you responsible for certain taxes associated with your spouse or former spouse. In that situation, you may need Form 8857, Request for Innocent Spouse Relief.
For more information, see our related article: Innocent Spouse Form: Relief From Your Spouse’s Tax Debt
Need Help With Form 8379?
An injured spouse allocation can become complicated. Your return may include multiple sources of income, tax credits, dependents, estimated payments, self-employment income, or community property rules.
PennySmart Group can review your situation and calculate the appropriate allocation. We can also prepare Form 8379 and help you submit it correctly.
If the government uses your joint refund to pay your spouse’s debt, you may still have a right to part of that money. Form 8379 may help you recover your share of the joint tax refund if you qualify.
Contact PennySmart Group to schedule a consultation about your injured spouse claim. Learn About Our Tax Services
This article provides general tax information and is not legal advice. Your eligibility and injured spouse refund amount depend on your individual circumstances and applicable IRS rules.