Innocent Spouse

The IRS states that both taxpayers are jointly and individually responsible for a joint return, even if they later divorce. This is true even if the divorce decree states otherwise.


Relief falls into 3 categories:

• Innocent Spouse
  
  
• Separation of Liability
  
  
• Equitable Relief

To qualify for an Innocent Spouse, you must meet all the following conditions:

1. You must have filed a joint return that has an understatement of tax.
   
   
2. The understatement of tax must be due to erroneous items of your spouse.
   
   
3. You must 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.
   
   
4. Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax; and
   
   
5. You must request the relief within 2 years after the date on which the IRS first began collection activity against you. This is after July 22, 1998.
   
   

Under Separation of Liability you divide the understatement of tax on your joint return between you and your spouse. You also must meet either of the following requirements:

1. You are no longer married to, or are legally separated from the spouse you filed a joint return with.
   
   
2. You were not a member of the same household as the spouse you signed a joint return with during the 12 month period ending on the date you file form 8857.
   
   

To qualify for Equitable Relief, You must meet the following conditions:

1. You do not qualify for innocent spouse or separation of liability.
   
   
2. It would be unfair to hold you liable for the understatement of tax, taking into account all the facts and circumstances.
   
   

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