Who Qualifies for Injured Spouse Relief
You may qualify if you file a joint return and your part of the refund was taken, or is expected to be taken, for your spouse’s past-due debt. The IRS calls the refund an “overpayment” and the taking an “offset.” According to the IRS instructions for Form 8379, the spouse’s debt must be one of these:
- Past-due federal tax
- State income tax
- State unemployment compensation debt
- Child support
- Federal nontax debt, such as a student loan
You also need to have added money to the refund yourself. Form 8379 asks whether you had:
- Income of your own, such as wages
- Federal tax withholding (tax taken out of your paycheck)
- Estimated tax payments
- Refundable credits, such as the American opportunity credit or the premium tax credit
Filing Form 8379 when your spouse has no past-due debt delays your refund. To find out whether an offset will happen, call the Treasury Offset Program at 800-304-3107, Monday–Friday, 7:30 a.m.–5 p.m. Central, per the IRS reduced refund page. Learn more about getting a refund when you owe taxes.
How to File Form 8379
You can send Form 8379 with a return (e-file or paper file) or by itself (must be paper filed):
- With your joint return. Write “Injured Spouse” in the upper left corner of page 1 of the return if paper filing.
- With an amended joint return (Form 1040-X). Use this only if you’re amending to claim a joint refund. Mark page 1 the same way if paper filing.
- By itself, after you file. Attach all Forms W-2 and W-2G for both spouses, plus any Forms 1099 that show tax withheld. Don’t attach a copy of your joint return, because that slows processing.
Form 8379 Processing Times
How you file changes how long you wait, per the Form 8379 instructions.
| How You File Form 8379 | Estimated Processing Time |
|---|---|
| With a paper-filed joint return | About 14 weeks |
| With an e-filed joint return | About 11 weeks |
| By itself, after the joint return is processed | About 8 weeks |
Deadline to File Form 8379
You have until the later of 2 dates, per the IRS instructions. One is 3 years from the original return’s due date, including extensions. The other is 2 years from the date you paid the tax that was later offset.
If offsets hit refunds in more than one year, file a separate Form 8379 for each year.
Special Rules in Community Property States
The deadline is the same in every state, but how the IRS splits the refund can depend on where you live. In community property states, special rules apply, and the IRS uses state community property law to divide the refund, per the Form 8379 instructions.
The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
Injured Spouse vs. Innocent Spouse Relief
The two names sound alike but cover different problems. Injured spouse relief applies when your refund pays your spouse’s debt. Innocent spouse relief applies when your joint return understated the tax because of your spouse’s errors that you didn’t know about.
For innocent spouse relief, file Form 8857 instead of Form 8379. The IRS says you must request it within 2 years of getting an IRS audit or tax-due notice.
