If an agency tells you or your spouse that your tax refund will be withheld to pay your spouse’s debt, you may be able to file an “injured spouse” claim with your joint tax return.
“Injured spouse” does not mean that your spouse was hurt in an accident. It means that you were “injured” because the IRS kept your part of the refund to pay a debt owed by your spouse, but not by you.
“Injured spouse” claim
An injured spouse claim can help you get back your part of a tax refund from a joint tax return. You might have an injured spouse claim if your spouse:
- is behind on student loans, or
- fell behind in making child support payments for children from another relationship, or
- owed federal income tax before you married or from a year when you filed separately.
An injured spouse claim will not help you get your part of the refund if both you and your spouse owe the debt. For example, any tax due on a tax return filed as “married filing jointly” is a jointly owed debt. Both spouses are responsible for paying it. If the couple's refund is withheld in the future to pay the debt, neither spouse is an injured spouse.
If you feel that you should not be responsible for your spouse’s tax debt after signing a joint return, you may have an “innocent spouse” claim, which is different than an “injured spouse” claim.
For questions about innocent spouse cases, fill out our form and we will call you back. Your information will be sent to Legal Services Vermont, which screens requests for help for both Vermont Legal Aid and Legal Services Vermont. You can also call us at 1-800-889-2047.
How to qualify
To qualify for an injured spouse claim when a refund is withheld, you must meet all three of these conditions:
- You are not required to pay the debt.
This means your spouse had the debt before you got married or that only your spouse is responsible for paying it.
Examples: past-due child support, defaulted student loans, foreclosures on federal loans, unpaid state income tax and any separate federal debt.
- You reported income on the joint tax return.
Some or all of the income reported on the joint return (when the refund was withheld) must be your income from a job, self-employment or investments. If your taxable income for the tax year in question is $0.00, then your "share" of any refund is also $0.00.
- You made and reported payments on the joint return.
Payments include federal income tax withheld from your wages, estimated tax payments and refundable tax credits, such as the earned income tax credit or additional child tax credit.
How much is yours?
Your share of a refund is based on the amount of federal income tax withheld from your paycheck or estimated tax payments you made on your self-employment income.
Any additional child tax credits will also be included in your share. Any earned income tax credit will be split between you and your spouse based on how much each you earned – that is, your contribution to the joint adjusted gross income.
How to make an injured spouse claim
Make a claim by filing IRS Form 8379. Get Form 8379 online or by calling the IRS at 1-800-829-3676.
- If you have not filed your joint tax return and received a notice that your refund will be withheld, complete your return and attach Form 8379 when you file it. Write “injured spouse” in the upper left corner of the first page of the return. You can still file your tax return online.
- If you have already filed your joint return and found out that your refund was withheld, complete Form 8379 as soon as you can and mail it to the IRS Center where you filed your tax return. If you lived in Vermont when you filed the joint tax return, mail it to:
Department of the Treasury
Internal Revenue Service Center
Kansas City, MO 64999-0002
If you aren’t sure what address to use, look it up on this irs.gov web page.
- Attach copies of all W-2 and 1099 forms received by you or your spouse to Form 8379.
If you disagree with the amount
Contact the IRS to ask for a copy of the Injured Spouse Claim Worksheet. You can also contact us at Vermont Legal Aid’s Low-Income Taxpayer Clinic. Fill out our form and we will call you back. Your information will be sent to Legal Services Vermont, which screens requests for help for both Vermont Legal Aid and Legal Services Vermont.
This IRS Taxpayer Advocate Service web page explains injured spouse relief and how to ask for it. It has links to the IRS forms and publications.