When you file a joint return, both spouses are generally responsible for the whole tax bill, including tax the IRS adds later after finding errors. This is called joint and several liability, and it continues after a divorce. Innocent spouse relief, available under Internal Revenue Code section 6015, can release one spouse or former spouse from some or all of that liability in certain situations.
The three types of relief
Innocent spouse relief (section 6015(b)). For a joint return with an understated tax that came from your spouse's errors. In general, you must show that you did not know and had no reason to know about the understatement when you signed the return and that it would be unfair to hold you responsible. If you knew about only part of the problem, you may get partial relief.
Separation of liability relief (section 6015(c)). This divides an understated tax between you and your spouse so that you pay only your share. It is available if you are divorced, legally separated, widowed, or have lived apart for the 12 months before you file. It does not apply to items you actually knew about when you signed the return.
Equitable relief (section 6015(f)). A catch-all for people who do not qualify for the first two but for whom holding them liable would be unfair based on all the facts and circumstances. It is the only type that can apply to an unpaid tax that was correctly reported but never paid. Knowledge is one factor in this analysis rather than an automatic bar, and the IRS considers things like abuse or financial control by the other spouse.
The IRS also mentions a narrow exception for victims of spousal abuse or domestic violence who signed a return under fear or pressure. Married residents of community property states who did not file jointly may ask for relief from tax on community income.
Deadlines
| Type | Generally request it |
|---|---|
| Innocent spouse and separation of liability | No later than 2 years after the IRS first begins collection activity against you |
| Equitable relief, tax still owed | Within the IRS collection period, generally 10 years from assessment, subject to suspensions |
| Equitable relief, credit or refund | Within 3 years after the return was filed, or 2 years after the tax was paid, whichever is later |
The IRS's consumer page describes the two-year rule as 2 years after you get a notice of an audit or of taxes due. The form instructions are more exact: the period runs from the first collection activity against you, such as an offset of your refund against the joint debt or a collection due process notice. Because the trigger is easy to misjudge, do not wait.
How to request relief
File Form 8857, Request for Innocent Spouse Relief. Do not attach it to your tax return or send it to the Tax Court. Complete every line, sign and date it, and attach extra pages as needed. A paid preparer must sign it and include a PTIN. Keep a copy.
What happens after you file
- The IRS contacts the other spouse. It must give your spouse or former spouse a chance to participate, even in cases involving abuse, so say so on the form if it applies. The IRS protects your personal information, but other details you provide may be shared with the spouse you name.
- Collection is paused for the year. The IRS says it cannot collect that year's liability from you while the request is pending, although interest and penalties continue to accrue. After resolution, the 10-year collection period is extended by the time the request was pending plus 60 days.
- Review takes time. The IRS says it can take 6 months or longer. Keep filing and paying as usual.
- You receive a determination. The IRS issues a preliminary decision, and either spouse may appeal it to the Independent Office of Appeals within 30 days of the letter date.
Refunds and Tax Court
If you are granted innocent spouse or equitable relief, you may get a refund of payments you made from your own funds, with limits tied to when you file. Joint payments and joint withholding do not qualify, and refunds are not allowed under separation of liability relief.
You can petition the U.S. Tax Court within 90 days after the IRS mails a final determination, or if none arrives within 6 months of filing. That period is not extended while the IRS considers your request. If you receive a notice of deficiency, its 90-day petition period applies separately, and raising innocent spouse relief in that petition preserves it.
Common mistakes
- Waiting more than 2 years after the first collection step because the audit notice seemed to be the trigger.
- Assuming a divorce decree ends your responsibility to the IRS. A divorce agreement alone does not remove joint liability.
- Leaving out facts about abuse, financial control or lack of access to information, which can affect the analysis.
How we can help
We can review the notices that created the liability, work out which type of relief fits and the likely deadline, prepare Form 8857 with supporting statements, and communicate with the IRS and Appeals once you sign a power of attorney. We cannot promise relief, since the IRS looks at the facts of each case. If safety is a concern, tell us so we can proceed carefully.
Related reading includes filing status and IRS audit representation. You can also contact us.
Frequently asked questions
Can I get relief if my spouse and I are still married?
Yes for innocent spouse and equitable relief. Separation of liability relief requires that you are divorced, legally separated, widowed or have lived apart for the prior 12 months.
Does relief cover penalties and interest?
Relief from the tax typically includes the related interest and penalties on the part for which you are relieved. Interest and penalties keep accruing on any balance while a request is pending.
What if I just cannot pay the joint balance?
Relief is about who is responsible. If you remain responsible, see the installment agreement and offer in compromise options.
Official sources
- IRS: Innocent spouse relief
- IRS: Instructions for Form 8857
- IRS: Publication 971, Innocent spouse relief
- IRS: Letters and notices offering an appeal opportunity
This page is a plain-language summary. The official source controls if there is any difference.
General information only, not tax, legal or accounting advice for your situation. Rules, limits and deadlines change; confirm the current rules with the official source or a qualified professional before you act. Reading this page does not create a professional relationship with CPA Tax Payroll and Accounting Corp.