Injured & Innocent Spouse
This is archived information that pertains only to the 2002 Tax Year. If you
are looking for information for the current tax year, go to the Tax Prep Help Area.
Is there a form for receiving the no-fault spouse's portion on a joint return when one spouse owes child support?
Yes, Form 8379 (PDF), Injured Spouse Claim and Allocation, is the application to request your portion of a joint refund.
References: How can I collect child support from my ex-spouse?
You must contact your local child support agency.
References: How do I know if I am an injured spouse?
When a joint return is filed and only one spouse owes past-due child and/or child spousal support, a federal debt, or state income tax, the other spouse can be considered an injured spouse and may request his or her share of the joint refund. If this situation applies to you, file Form 8379 (PDF), Injured Spouse Claim and Allocation, to recover your share of the joint refund.
You are considered an injured spouse if you: - file a joint tax return,
- have received income (such as wages, interest, etc.)
- have made tax payments (such as withholding)
- report the income and tax payments on the joint return, and
- have a refund due, all or part of which was, or is expected to be, applied against your spouse's past-due amount.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
When should I file the Form 8379?
You can file Form 8379 (PDF), Injured Spouse Claim and Allocation, with your joint return or after you have filed. If filed with your return, attach the form to the return in the order of the attachment sequence number and enter "Injured Spouse" in the upper left corner of the return. If you have already filed your return, you can file Form 8379 by sending it separately to the same IRS Service Center where you filed your return.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
Is there any way to find out if I need to file an injured spouse claim before I file a return?
Your spouse can ask the agency that might be claiming the refund for a past-due debt. Another source of information is the Financial Management Service Help Desk at 1-800-304-3107.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
My spouse's refund is to be held by the government. Can I file separate or is there an injured spouse clause that I can file to receive my share of the refund?
You can file separate or you can file a joint return with a request for injured spouse relief. To file for injured spouse relief, you need to file Form 8379 (PDF), Injured Spouse Claim and Allocation. Attach the form to the return in the order of the attachment sequence number and enter "Injured Spouse" in the upper left corner of the return. If you have already filed your return you can file Form 8379 by sending it separately to the same IRS Service Center where you filed your return.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
I live in a community property state. Can I file a Form 8379?
Yes, but only if you are not the spouse required to pay the past-due debt.
References: Can I file my return electronically even though I am filing a Form 8379, Injured Spouse Claim and Allocation?
Yes, you can file electronically.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
1.12 IRS Procedures: Refund Inquiries My ex-spouse owes me child support. How can I find out if he has filed and if I will receive his federal refund this year?
An individual's tax return is protected under the Privacy Act of 1974. Therefore, the IRS is restricted from releasing information concerning your ex-spouse's account. However, if your state office of child support enforcement has notified the Treasury of a past-due child support obligation, the refund will be offset to pay the debt.
References: If our tax refund is being taken for back child support my husband owes, how can I file to get back or keep my portion of the refund?
When a joint return is filed and only one spouse owes past-due child support, the other spouse can be considered an injured spouse and may request his or her share of the joint refund. If this situation applies to you, file Form 8379 (PDF), Injured Spouse Claim and Allocation, to recover your share of the joint refund.
You are considered an injured spouse if you: - file a joint tax return,
- have received income (such as wages, interest, etc.)
- have made tax payments (such as withholding)
- report the income and tax payments on the joint return, and
- have a refund due, all or part of which was, or is expected to be, applied against your spouse's past-due amount.
Refer also to our Frequently Asked Question section on Injured Spouse in the IRS Procedures section.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
- Tax Topic 203, Failure to Pay Child Support and Other Federal Obligations
The Child Support Enforcement Agency said I would get my ex-spouse's federal income tax refund if he has one. He owes me child support. I still have had no word about any refund. How can I find out if he filed at all this year?
An individual's tax return is protected under the Privacy Act of 1974. Therefore, the IRS is restricted from releasing information concerning your ex-spouse's account. However, if your state office of child support enforcement has notified the Treasury of a past-due child support obligation, the refund will be offset to pay the debt.
References: If I file jointly and my husband owes back child support, will my refund be applied towards his obligation until his debt with children services is paid?
If you are due a refund but have not paid certain amounts you owe, such as child support, all or part of your refund may be used to pay all or part of the past-due amount. This applies to a joint return. When a joint return is filed and only one spouse owes past-due child and spousal support or a federal debt, the other spouse can be considered an injured spouse and may request his or her share of the joint refund. If this situation applies to you, file Form 8379 (PDF), Injured Spouse Claim and Allocation, to recover your share of the joint refund. You must have received income such as wages, have made tax payments such as withholding, and report the income and tax payments on the joint return.
References: - Form 8379 (PDF), Injured Spouse Claim and Allocation
- Tax Topic 203, Failure to Pay Child Support and Other Federal Obligations
2.2 Filing Requirements/Status/Dependents/Exemptions: Filing Status If two single people (never married) have a child and have always lived together providing equal support for that child, can they both claim head of household status?
Only the person who paid more that half the cost of keeping up a home for the year would qualify for the head of household filing status. If both people paid exactly the same amount, neither would qualify for the head of household filing status. Please refer to Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information, for more information.
References: I am divorced and pay child support. My children live with their mother and she claims them on her tax returns. Can I claim head of household?
You can only file as head of household if you meet all of the following requirements: - You are unmarried or considered unmarried on the last day of the year.
- You paid more than half the cost of keeping up a home for the year.
- A qualifying person must live with you in the home for more than half the year (except for temporary absences such as school). Refer to Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information, for more information.
References: - Publication 501 (PDF), Exemptions, Standard Deduction, and Filing Information
2.3 Filing Requirements/Status/Dependents/Exemptions: Dependents & Exemptions My husband and I have provided a home for my niece and her son for the past seven months. She receives no child support from her ex-spouse, and she does not work or have any income of her own. Can I claim her and her son as a dependent?
Your niece doesn't need to live with you for the entire year in order to be claimed as a dependent. She meets the first of five dependency exemption tests, which is the relationship test. She must still meet the other four dependency exemption tests. - Citizenship test.
- Joint return test.
- Gross income test.
- Support test.
Your niece's son did not live with you for the entire year and does not meet the relationship test. Therefore, he cannot be claimed as a dependent. Refer to Publication 501 (PDF), Exemptions, Standard Deduction and Filing Information, for more information on five exemption tests.
References: - Publication 501 (PDF), Exemptions, Standard Deduction and Filing Information
My 7 year old son lived in my household for seven months of the year, and I provided all of his support. I paid child support to his other parent for the other five months. Can I claim my son as a dependent and for a child tax credit without Form 8332?
There is a special rule for children of divorced or separated parents, which usually gives the dependency exemption to the custodial parent. The custodial parent is defined as the parent who has custody of the child for the greater part of the year. If you can claim your son as a dependent and he is under age 17 at the end of the tax year and a citizen or resident of the United States, you may be able to claim the Child Tax Credit.
Under the special rule, the parent who had custody of the child for the greater part of the year (the custodial parent) is generally treated as the parent who provided more than half of the child's support. This parent is usually allowed to claim the exemption for the child if the other dependency tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met.
Refer to Publication 501 (PDF), Exemption, Standard Deduction, and Filing Information or Publication 504 (PDF), Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.
You can claim your son without Form 8332 (PDF), Release of Claim to Exemption for Child of Divorced or Separated Parents, but if both parents claim the child as a dependent, both returns will be subject to further IRS review.
References: My divorce decree states my ex-spouse is allowed to claim one of our two children that live with me. He is very behind in child support so can I claim both children?
The answer depends on the year of the divorce decree and its exact wording. - If the divorce decree states that your spouse must pay child support to claim the child as a dependent and if the child lived with you for more than half the year, then you can claim the child as a dependent on you return. If the divorce decree was executed after 1984 and it unconditionally entitles your spouse to the exemption, then your spouse gets to claim the child as a dependent.
- If the divorce decree that entitles the noncustodial parent to the exemption was executed prior to 1985 (and not modified) and the noncustodial parent paid at least $600 of child support, then the noncustodial parent gets to claim the child as a dependent.
Please refer to Publication 504 (PDF), Divorced or Separated Individuals, for more information.
References: If you pay child support, are you allowed to deduct anything on your taxes or claim the child as an exemption?
Nothing can be deducted for the child support payments. Child support payments are neither deductible by the payer nor taxable income to the payee. You may qualify to claim the child as a dependent. There is a special rule for children of divorced or separated parents, which usually gives the dependency exemption to the custodial parent. Under the special rule, the parent who had custody of the child for the greater part of the year (the custodial parent) is generally treated as the parent who provided more than half of the child's support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met.
If the parents had never been married, the special rule does not apply and in order to claim an exemption for your dependent child you must meet the following five tests. - Member of household or relationship test.
- Citizen or resident test.
- Joint return test.
- *Gross income test.
- Support test.
*If your child is under age 19 or a student under age 24, the gross income test does not apply.
Please refer to Publication 501 (PDF), Exemptions, Standard Deduction and Filing Information, and Publication 504 (PDF), Divorced or Separated Individuals, for more information.
References: 4.5 Interest, Dividents, Other Types of Income: Alimony, Child Support, Court Awards, Damages Are child support payments considered taxable income?
No. Some types of income taxpayers receive are not taxable and child support is one of them. When you total your gross income to see if you are required to file a tax return, do not include your nontaxable income. For additional information, refer to Tax Topic 422, Nontaxable Income, or Publication 525 (PDF), Taxable and Nontaxable Income.
References: 8.2 Earned Income Tax Credit: Taxable & Nontaxable Income Is child support considered income when calculating the Earned Income Credit?
No, for purposes of calculating the Earned Income Credit, child support is not considered earned income.
Please refer to Publication 596 (PDF), Earned Income Credit, for a complete discussion of the Earned Income Credit.
References:
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