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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:

My ex-spouse is delinquent in paying child support. The attorney general has filed some sort of paperwork with the IRS to withhold my ex-spouse's tax refund. How would I receive the withheld refund?

Because the answer is different for each state, you need to contact the state link to the U.S. Department of Health and Human Services Administration for Children & Families Office of Child Support Enforcement where you live to get this information.

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

What is the legal procedure I need to follow in order to obtain my ex-spouse's tax refund or refunds due to unpaid child support?

You must file a claim with your local office of child support enforcement. For more information, follow the state link at the U.S. Department of Health and Human Services Administration for Children & Families Office of Child Support Enforcement.

References:

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

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