When you sign a joint return, you and your spouse are each responsible for the full tax. If your spouse understated income or left a balance unpaid, the IRS can collect all of it from you unless you qualify for relief.
This guide explains the four types of relief, who qualifies, the deadlines, how to file Form 8857 and what happens afterwards, using the IRS Form 8857 instructions and Publication 971.
The IRS instructions say that when you file a joint income tax return, the law makes both you and your spouse responsible for the entire tax liability, including extra tax the IRS later finds due to your spouse's income, deductions or credits. Innocent spouse relief is the process for asking not to be held responsible. It is different from injured spouse relief: the IRS says you cannot request injured spouse relief on Form 8857 and must file Form 8379 instead, for example to recover your share of a refund taken for a debt of your spouse.
| Type | What it covers | Key conditions (IRS) |
|---|---|---|
| Innocent spouse relief | Understated tax on a joint return caused by your spouse's erroneous items | You did not know and had no reason to know of the understatement when you signed, and holding you liable would be unfair |
| Separation of liability | Understated tax, allocated between you and your spouse | The person you filed with is deceased, or you are divorced, legally separated or have lived apart for the 12 months before you file |
| Equitable relief | Understated tax or unpaid tax | Holding you liable would be unfair after considering all facts and circumstances; the only relief for an unpaid tax |
| Community income | Tax on an item of community income when you did not file jointly | You did not include the item, it belonged to your spouse under community property law, you did not know of it and it would be unfair |
An understated tax means the IRS determined your total tax should be more than the return showed. Our reading of the IRS example: a joint return showing $5,000 of tax, later corrected to $6,500 because your former spouse earned unreported income, has an understated tax of $1,500 for which both spouses are liable. An unpaid tax is tax properly shown on the return but not paid, such as a $5,000 balance your former spouse promised to pay.
The knowledge test differs by type. For innocent spouse relief you must show that when you signed you did not know and had no reason to know of the understated tax. For separation of liability, relief does not apply to any part of the understated tax due to items you actually knew about when you signed. Publication 971 says that knowing the source of an item is not enough to establish actual knowledge. Partial relief is possible: in the Publication 971 innocent spouse example, a spouse knew the other spouse had not reported $5,000 of gambling winnings, but the IRS determined the winnings were $25,000, and the understated tax due to the extra $20,000 will qualify if you meet the other requirements while the tax on the $5,000 will not. Publication 971 also says that where you had actual knowledge you may still qualify for relief if you were the victim of spousal abuse or domestic violence before signing and, because of that abuse, did not challenge items on the return for fear of retaliation. For equitable relief the IRS considers whether you would suffer economic hardship, meaning you could not pay reasonable basic living expenses.
| Situation | Deadline |
|---|---|
| Innocent spouse or separation of liability | Generally no later than 2 years after the first IRS collection attempt against you |
| Equitable relief, balance due | Generally within the time the IRS has to collect: 10 years from assessment (suspensions extend it) |
| Equitable relief, credit or refund | 3 years after the original return was filed or 2 years after the tax was paid, whichever is later |
| Community income relief (not equitable) | No later than 6 months before the assessment period against your spouse ends (if the IRS starts examining your return in that period, 30 days after its initial contact letter to you) |
Collection attempts that start the 2-year period include a section 6330 notice of the IRS's intent to levy and your collection due process hearing right. File as soon as you learn of the liability; the IRS says not to delay because you lack all the documents. Mail Form 8857 to the IRS address in the instructions (not with your return) or fax it to 855-233-8558. Do not file Form 8857 for a year if a court in a final decision considered and denied relief, or you meaningfully participated in a court proceeding in which you could have asked for relief, if you entered into an offer in compromise, or if you entered into a closing agreement that disposed of the same liability.
The IRS must contact your spouse or former spouse, with no exceptions even in abuse cases, and lets them take part. It sends a preliminary determination letter; if neither of you appeals, a final letter follows, or Appeals issues it. You can petition the Tax Court (except for a community income request other than equitable relief) if you get a final determination letter or hear nothing within 6 months of filing Form 8857; the petition must be filed no later than the 90th day after the IRS mails the final letter, and a late petition cannot be reviewed. While your request is pending the IRS cannot collect from you for the year, but interest and penalties continue to accrue, and the 10-year collection period extends by the pending time plus 60 days. If relief is denied, see our IRS payment plan guide, offer in compromise guide and penalty abatement guide.
The IRS lists the community property states as Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. If you filed a joint return you are jointly and severally liable for the whole tax, and state community property law is not used to decide whether an item belongs to you or your spouse when you ask for relief. If you filed separately and are liable for an item of community income, the community income relief and equitable relief routes above apply.
The IRS instructions we reviewed are the June 2021 revision of the Form 8857 instructions and the December 2021 revision of Publication 971; check IRS.gov/Form8857 for later changes before you file.
IRS: Instructions for Form 8857, Request for Innocent Spouse Relief, IRS: Publication 971, Innocent Spouse Relief.