How to Distinguish Between Injured Spouse and Innocent Spouse

by Jackie Lohrey

The difference between an injured spouse and an innocent spouse is significant in the eyes of the Internal Revenue Service. Both release you from an income tax liability arising from a “married filing jointly” return, but different outcomes make knowing how to distinguish between the two terms important. Determining which status applies to your situation requires careful review of both definitions and a close look at your joint income tax return.

Review the joint tax return in question and determine your level of personal knowledge about the information it contains. In the case of an injured spouse, you must have full knowledge of every aspect of the return. In addition, all amounts reported on the return, including deductions and credits, must be true and accurate. To qualify as an innocent spouse, your return must not only be inaccurate due to information being omitted or deductions and/or credits claimed improperly, but you must be unaware that your spouse provided false information or unaware of the extent of that misinformation.

Evaluate the circumstances surrounding the tax liability. The definition of an injured spouse requires that the tax liability must relate to past due debt, such as a delinquent tax liability, child support in arrears or a student loan default for which your spouse is solely responsible. In contrast, the definition of an innocent spouse requires that the tax liability in question be due to a fraudulent tax return.

Look at the amount reported as taxable income on the return and calculate whether you personally would have been entitled to a refund for your portion if not for your spouse’s tax liability. Unlike an innocent spouse where only one spouse must report taxable income, in the case of an injured spouse, you also must report taxable income on the return and be entitled to a refund for your portion if not for your spouse’s tax liability.

Review your findings, as this will be the main distinction between an injured spouse and innocent spouse. When the IRS accepts your application as an injured spouse, the tax liability for your spouse remains but you'll receive the tax refund to which you were entitled based on your income and tax payments. When the IRS accepts your application as an innocent spouse, the IRS will release you in whole or part from any responsibility to pay the assessed tax along with fines and penalties levied on your spouse for filing a fraudulent return.

Download a copy of IRS Form 8379 (Injured Spouse Allocation) and IRS Form 8857 (Request for Innocent Spouse Relief) from the IRS website (links in Resources). Read the instructions for both forms and fill out the worksheets to further clarify whether you are entitled to claim either spousal status and start the process of getting your tax refund or clearing your tax liability.

Tip

  • Consider working with a tax professional or attorney to ensure that you get correct answers to any questions you might have and that the appropriate IRS forms are filled out and submitted correctly.

Items you will need

  • IRS Form 8739 (Injured Spouse Allocation)
  • IRS Form 8857 (Request for Innocent Spouse Relief)

Photo Credits

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