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Innocent Spouse Relief: Who Qualifies and How to File Form 8857

By Jon Call, EA: Enrolled Agent & NTPI Fellow • CLAW Tax Group

When you sign a joint tax return, you and your spouse are each responsible for the whole bill, including interest and penalties. That stays true after a divorce, even if the decree says your former spouse will pay, and even if your spouse earned all the income. Innocent spouse relief is how you ask the IRS to take the part that is not yours off your account.

Short answer: Innocent spouse relief lets you ask the IRS to release you from tax on a joint return that your spouse or former spouse caused. One form, Form 8857, covers all three types: innocent spouse relief, separation of liability, and equitable relief. CLAW Tax Group’s Enrolled Agents prepare it with you and work the IRS review.

What are the three types of relief?

You do not have to pick one. The IRS applies the type you qualify for.

  • Innocent spouse relief. This covers extra tax from your spouse’s errors, such as unreported income. You must show you did not know, and had no reason to know, about the errors when you signed, and that holding you liable would be unfair.
  • Separation of liability. This splits the extra tax between you and your spouse, so you pay only your share. You must be divorced, legally separated, or widowed, or you and your spouse must not have been members of the same household for the entire 12 months before you ask. It cannot produce a refund.
  • Equitable relief. This is the fallback when the first two do not fit. It can also reach tax shown on the return that your spouse never paid. The IRS weighs the full picture, including economic hardship and whether you benefited.

For example, if your former spouse left income off your joint return and you did not know about it, innocent spouse relief can take the extra tax, interest, and penalties off your account if you qualify.

Where you lived matters, because community property rules change the analysis. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

One caution: the IRS says there is no spouse relief for a year covered by an Offer in Compromise you signed, so look at spouse relief first.

How much time do you have?

Ask as soon as you learn about the tax. For innocent spouse relief and separation of liability, the limit is generally 2 years, counted from when the IRS began collection activities against you, such as a notice of intent to levy. If an IRS notice or a collection letter is on your table, the clock may already be running.

Equitable relief has more time. For tax that is still unpaid, you can ask for as long as the IRS can still collect it.

What happens after you ask?

  • Collection from you generally stops. Once the IRS receives your request, it generally cannot collect from you for that year while the request is pending. Interest and penalties keep growing.
  • The IRS contacts your spouse. The law requires it, with no exceptions. The IRS will not disclose your current name, address, phone numbers, employer, income, or assets.
  • Abuse is taken into account. You may still qualify even if you knew about the errors, if you were abused before signing or signed because you were pressured or threatened.
  • Expect months, not weeks. The IRS says its review may take up to 6 months or longer.
  • You can appeal. You have 30 days from the date of the preliminary determination letter to appeal, and 90 days from the date of the final determination letter to petition the Tax Court.

Is this the same as injured spouse relief?

No. Injured spouse relief gets back your share of a joint refund the IRS used to pay your spouse’s separate debt, such as past due child support. It uses a different form, Form 8379, and using the wrong form slows things down.

How CLAW Tax Group helps

Our team of Enrolled Agents handles your request from start to finish. We pull your IRS records, find which deadline applies, prepare the request with you, and handle the IRS follow up and any appeal. For Tax Court or other attorney work, our tax attorney, Matthew Wildes, JD, CPA, steps in.

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If relief covers only part of the balance, the rest can go into an installment agreement or Currently Not Collectible status. You may also want to read IRS levy release, IRS wage garnishment release, and Wisconsin tax help, or see all tax relief services.

CLAW Tax Group is a tax resolution firm based in White Bear Lake, Minnesota, serving clients in all 50 states. Affiliated with Wildes At Law.

References: IRC 6015; Instructions for Form 8857; Publication 971; IRS Innocent spouse relief; IRS Relief by separation of liability; IRS Equitable relief; IRS Injured spouse relief; IRS Appeals, Innocent spouse.

Frequently asked questions

Do I have to be divorced to get innocent spouse relief?

CLAW Tax Group gives the same answer the IRS rules give: no. Innocent spouse relief under IRC §6015(b) and equitable relief under §6015(f) do not require a divorce. Only separation of liability under §6015(c) depends on your status. You must be divorced, legally separated, or widowed, or you and your spouse must not have been members of the same household for the entire 12 months before you ask. Form 8857 covers all three.

Can I get innocent spouse relief if my spouse earned all the income?

CLAW Tax Group’s answer has two parts. First, earning none of the income does not remove your liability on a joint return. The IRS says both spouses are responsible even if one spouse earned all of it. Second, relief turns on other facts. Did you know or have reason to know about the errors? Would it be unfair to hold you liable? For separation of liability, what is your marital or household status?

What if I knew about the income but not how much?

Partial relief may be available in that situation. IRC §6015(b)(2) covers it. If you knew about an item but did not know, and had no reason to know, its full extent, you can be relieved of the tax on the part you did not know about. The IRS separation of liability page also allows partial relief if you did not know about part of an item.

Does my divorce decree protect me from my former spouse’s tax debt?

CLAW Tax Group’s answer is no, not as far as the IRS is concerned. The Form 8857 instructions say you remain jointly and severally liable even if the divorce decree says your former spouse is solely responsible for the tax. The IRS can still collect from you. To change that, you have to request relief on Form 8857.

Can I get a refund through innocent spouse relief?

It depends on the type. Innocent spouse relief and equitable relief can refund payments you made with your own money. You need proof, such as a bank statement or canceled check. Separation of liability cannot produce a refund. Payments made with the joint return, joint payments, and your spouse’s payments are not refunded. Withholding and estimated tax payments count as made with the joint return. For equitable relief, ask for a refund within 3 years after the return was filed or 2 years after the tax was paid, whichever is later.

How long does the IRS take to decide an innocent spouse request?

Plan for months, not weeks. The IRS says its review may take up to 6 months or longer. It sends a preliminary determination letter to both spouses, either spouse can appeal within 30 days, and then a final determination letter follows. If there is no final letter within 6 months after you filed, you can petition the Tax Court. Our tax attorney handles that step. Keep filing and paying your current taxes while you wait.

Can I get relief if the return was correct but my spouse did not pay the tax?

Look at equitable relief under IRC §6015(f), because it is the type that covers unpaid tax, not just understated tax. The IRS weighs all the facts, including economic hardship and whether you benefited. Its equitable relief page says you cannot claim relief if you knew your spouse would not pay the joint liability. For equitable relief, Rev. Proc. 2013-34 expands how the IRS weighs abuse and financial control by the other spouse.

Can I raise innocent spouse relief at a Collection Due Process hearing?

Yes, when the timing fits. IRC §6330(c)(2)(A)(i) lets you raise appropriate spousal defenses at a Collection Due Process hearing on a proposed levy. Keep the separate Form 8857 clock in mind too. The Form 8857 instructions list a section 6330 notice of intent to levy, usually Letter 11 or Letter 1058, as a collection activity. It may start the 2 year period to request innocent spouse relief or separation of liability.

What if I never agreed to file a joint return?

Then you may not need innocent spouse relief at all. The IRS says that if you did not sign or consent to a joint return, the joint election is invalid. That is not a type of innocent spouse relief. The IRS says to follow the instructions on the notice you received or call the number on it. If you did agree to file jointly, Form 8857 is the route.

Can an Enrolled Agent handle my innocent spouse case?

CLAW Tax Group’s Enrolled Agents handle the IRS side of innocent spouse cases under Form 2848. The IRS says Enrolled Agents, CPAs, and attorneys have unlimited representation rights before the IRS, including appeals. That covers Form 8857, IRS follow up, and the Form 12509 appeal. A Tax Court petition is attorney work, and our tax attorney steps in.