Innocent spouse relief

When married couples file a joint tax return, both spouses are jointly and severally liable for the entire tax due — even if only one spouse earned the income or made the errors. This means the IRS can collect the full amount from either spouse, regardless of who was at fault.

61 steps across 12 sections

1. 1. Innocent Spouse Relief -- IRC 6015(b)

  • You filed a joint return that has an understatement of tax
  • The understatement is due to your spouse's (or former spouse's) erroneous items
  • You did not know, and had no reason to know, that the understatement existed when you signed the return
  • Considering all facts and circumstances, it would be unfair to hold you liable
  • You filed Form 8857 within 2 years of the first IRS collection activity

2. 2. Separation of Liability Relief -- IRC 6015(c)

  • You filed a joint return with an understatement of tax
  • You are no longer married to, are legally separated from, or have not lived in the same household as the spouse for at least 12 months before filing Form 8857
  • You did not have actual knowledge of the erroneous items (the IRS bears the burden of proving actual knowledge)
  • You did not fraudulently transfer assets with your spouse to avoid tax
  • Your spouse did not transfer property to you to avoid tax
  • You filed within 2 years of the first IRS collection activity

3. 3. Equitable Relief -- IRC 6015(f)

  • You are not eligible for innocent spouse relief or separation of liability relief (or you qualify but have an unpaid-tax issue those two cannot address)
  • An understatement or underpayment of tax exists
  • There was no fraudulent scheme between you and your spouse
  • Your spouse did not transfer property to you to avoid tax
  • You did not knowingly participate in filing a fraudulent return
  • The tax liability is attributable to your spouse, or the unpaid tax is from your spouse's income
  • Filed within the applicable timeframe (see Deadlines section)

4. Before You File

  • Gather documentation: Collect tax returns for the years in question, IRS notices, divorce decrees, financial records, bank statements, and any evidence supporting your lack of knowledge.
  • Do not file with your tax return. Form 8857 is filed separately — it cannot be e-filed and must not be attached to your regular return.
  • You do not need to choose the type of relief. The IRS will evaluate your request under all three types and apply whichever you qualify for.

5. Completing Form 8857

  • Your name, SSN, current address
  • Tax years for which you are requesting relief (up to 6 years per form; file additional forms for more years)
  • Name and SSN of the spouse whose errors caused the liability
  • Current marital status and date of divorce/separation if applicable
  • This is the most critical section. Explain in detail:
  • Why you did not know about the erroneous items
  • Your involvement (or lack thereof) in household finances
  • Whether you were a victim of domestic abuse or coercion
  • Your education level, financial sophistication, and role in preparing the return
  • Whether your spouse was deceptive or evasive about finances

6. Filing Instructions

  • Where to mail: The address listed in the Form 8857 instructions (varies by location; check the current instructions)
  • Do not fax the form to the IRS
  • One form per 6 tax years: If requesting relief for more years, file additional Form 8857s
  • Attach supporting documents: Bank statements, canceled checks showing your own payments, divorce decrees, evidence of abuse, any documentation supporting your claims

7. After Filing

  • The IRS will contact your spouse or former spouse (this is required by law, with no exceptions, even in abuse situations)
  • Your spouse has a right to participate in the process
  • Processing takes approximately 6 months or longer
  • You will receive a preliminary determination letter, then a final determination
  • If denied, you have 90 days from the mailing of the final determination to petition the U.S. Tax Court
  • If no determination within 6 months, you may petition Tax Court without waiting for a decision

8. Innocent Spouse Relief (6015(b)) -- 2-Year Deadline

  • Sending a notice demanding payment (not the initial tax assessment notice)
  • Offsetting your income tax refund against the joint liability
  • Filing a claim in court against you
  • Filing suit to collect the joint liability
  • Issuing a Section 6330 notice of intent to levy (Letter 11 or Letter 1058)

9. Equitable Relief (6015(f)) -- Extended Deadlines

  • Balance due (unpaid tax): Must file before the expiration of the IRS's 10-year collection statute of limitations. This period generally runs from the date the tax was assessed.
  • Refund claims: Must file within 3 years after the date the original return was filed, or within 2 years after the date the tax was paid, whichever is later.
  • No 2-year deadline from collection activity applies to equitable relief.

10. Critical Timing Notes

  • Once the joint tax liability is fully paid, equitable relief for a refund has its own window (see above).
  • The assessment date (not the filing date) is what starts the 10-year collection period.
  • Extensions, bankruptcy, or other events can toll (pause) the statute of limitations.

11. 1. Knowledge or Reason to Know (Strongest Factor)

  • Understated tax: Did you know, or should you have known, about the erroneous item when you signed the return?
  • Unpaid tax: Did you know the tax would not be paid when you signed the return? Did you reasonably believe your spouse would pay?
  • Sub-factors for "reason to know": Your education level, business/financial experience, involvement in finances, your spouse's deceptiveness or evasiveness, changes in spending patterns, your participation in the activity generating...
  • Actual knowledge (knowing the item existed) is an extremely strong factor against relief
  • Knowing the income source existed is insufficient; you must have known about the specific item

12. 2. Significant Benefit

  • Did you receive a benefit beyond normal support from the understated/unpaid tax?
  • Weighs against relief: Luxury purchases, expensive vacations, lavish lifestyle funded by unreported income
  • Weighs for relief: Only your spouse benefited; you received no more than normal household support
  • "Significant benefit" means anything more than normal support, which varies by the couple's circumstances

Common Mistakes

  • Confusing innocent spouse with injured spouse
  • Missing the 2-year deadline
  • Not telling your full story
  • Failing to attach supporting documentation
  • Assuming a divorce decree protects you from the IRS

Pro Tips

  • File as early as possible
  • Request a Collection Due Process (CDP) hearing
  • Keep copies of everything
  • Document abuse thoroughly
  • Hire a tax professional for complex cases

Sources

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