Many married taxpayers choose to file a joint tax return because of certain benefits this filing status allows. Both taxpayers are jointly and individually responsible for the tax and any additions to tax interest or penalties that arise as a result of the joint return even if they later divorce. This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. Either spouse may be held responsible for all the tax due even if one spouse earned all the income, or claimed improper deductions or credits. In some cases, a spouse can get relief from this joint and individual liability.

This relief from joint and individual liability should not be confused with injured spouse claim. You are an injured spouse if you file a joint return and all or part of your share of the refund was, or will be, applied against your spouse's past-due Federal tax, child support, Federal nontax debt such as a student loan or a past-due state tax debt. If you are an injured spouse, you may be entitled to recoup your share of the refund. Form 8379, Injured Spouse Claim and Allocation, must be filed in order to claim injured spouse relief. For more information, refer to Tax Topic 203, Failure to Pay Child Support and other Federal Obligations. Also, see the interactive Innocent Spouse Tax Relief Eligibility Explorer and the Tax Professional's Corner.

There are now three types of relief from joint and individual liability for spouses who filed joint returns:

1. Innocent spouse relief for additional tax you owe because your spouse or former spouse failed to report income or claimed improper deductions or credits.
2. Separation of liability. Under separation of liability you allocate the additional tax between you and your spouse or former spouse. The additional tax allocated to you is generally the amount you are responsible for.
3. Equitable Relief when you do not qualify for innocent spouse relief or separation of liability. You may also qualify for equitable relief if you properly reported the tax on your joint return but you did not pay it.

You must meet all of the following conditions to qualify for innocent spouse relief:

1. You filed a joint return which has an understatement of tax directly related to erroneous items of your spouse. Any income, deduction, basis amount or credit is an erroneous item if it is omitted from the joint return or incorrectly reported on the joint return.
2. You establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax.
3. Taking into account all the facts and circumstances, it would be inequitable to hold you liable for the understatement of tax.
4. You request relief no later than 2 years after the date the IRS first attempted to collect the tax from you.

To qualify under separation of liability you must have filed a joint return and must meet one of the following requirements at the time you request relief:

1. You are divorced or legally separated from the spouse with whom you filed the joint return for which you are requesting relief; or
2. You are widowed; or
3. You have not been a member of the same household as the spouse with whom you filed the joint return at any time during the 12-month period ending on the date you file Form 8857, Request for Innocent Spouse Relief.

In addition, you must request relief no later than 2 years after the date the IRS first attempted to collect the tax from you.

You may qualify for equitable relief if you do not qualify for innocent spouse relief, or separation of liability, or you properly reported the tax on your return but did not pay it. To qualify for equitable relief you must establish that it would be unfair to hold you liable for the tax on your joint return. Also, you must meet other requirements listed in Publication 971, Innocent Spouse Relief. You must request equitable relief no later than 2 years after the date the IRS first attempted to collect the tax from you.

If you request relief from joint liability, the Service will notify the spouse with whom you filed the joint return of your request and to allow them to provide information for consideration.

Form 8857, Request for Innocent Spouse Relief must be filed in order to elect innocent spouse relief, separation of liability or to request equitable relief. You may also refer to Publication 971, Innocent Spouse Relief, for more information. If you request relief from joint liability, the IRS is required to notify the spouse with whom you filed the joint return of your request and allow him or her to provide information for consideration.

Note: If you lived in a community property state and filed as "married filing separate," rather than "married filing joint," you might still qualify for innocent spouse relief and equitable relief. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Refer to Publication 971 for more details.

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