Innocent Spouse Relief Attorney in New Jersey & New York
A married couple filing a joint tax return can receive certain tax benefits, but joint filing also creates serious risk. When spouses file jointly, both spouses may be held responsible for the tax, penalties, and interest tied to that return.
Innocent spouse relief may help when one spouse or former spouse should not be held responsible for tax problems caused by the other spouse. Todd S. Unger helps taxpayers evaluate innocent spouse relief, separation of liability relief, equitable relief, and related IRS collection concerns.
Why Joint Tax Liability Can Become Unfair
When spouses file a joint income tax return, they are generally jointly and severally liable for the tax due for that year. That means the IRS may attempt to collect the full tax debt from either spouse, even if only one spouse caused the tax issue.
That rule can lead to unfair results. For example, one spouse may fail to report income, claim improper deductions, conceal financial information, control household finances, or create a tax problem the other spouse did not understand when signing the return.
After divorce, separation, or collection activity, the spouse who did not cause the issue may still face back taxes, penalties, interest, liens, wage garnishment, or bank levies. Innocent spouse relief exists because the tax law recognizes that it may be unfair to hold one spouse responsible for a joint tax debt when the facts show the responsibility should fall elsewhere.
Types of Innocent Spouse Relief
There are different forms of innocent spouse relief, and the right option depends on your filing history, relationship status, knowledge of the tax issue, whether the tax was understated or unpaid, and whether it would be unfair for the IRS to hold you responsible.
Innocent Spouse Relief
This may apply when a joint return understated tax because of income, deductions, credits, or other erroneous items connected to your spouse or former spouse, and you did not know or have reason to know about the problem when the return was filed.
Separation of Liability Relief
This may apply when you are divorced, legally separated, widowed, or no longer living with the spouse connected to the tax issue. It can allow the IRS to allocate responsibility between spouses instead of holding one spouse responsible for the entire qualifying understatement.
Equitable Relief
Equitable relief may be considered when the other forms of relief do not apply, but the facts still show it would be unfair to hold you responsible for the tax debt. These cases are highly fact-specific and often depend on financial hardship, abuse, control of finances, knowledge, benefit from the unpaid tax, and the overall fairness of the situation.
The IRS uses Form 8857 to evaluate innocent spouse relief, separation of liability, and equitable relief.
Understated Tax Versus Unpaid Tax Shown on the Return
The type of joint tax problem matters. An understatement generally exists when the return reported less tax than was legally due because income was omitted, deductions or credits were incorrect, or another item was reported improperly.
An underpayment generally exists when the return correctly reported the tax due but the balance was not paid. Traditional innocent spouse relief and separation of liability generally focus on qualifying understatements.
Equitable relief may be relevant to certain understatements or underpayments when the applicable fairness standards are met.
Divorce Does Not Automatically Control the IRS
A divorce decree or separation agreement may assign responsibility for the tax debt between former spouses, but it does not automatically change the IRS’s ability to collect a joint federal tax liability.
The IRS separately applies the federal innocent-spouse rules. Divorce, separation, financial control, who benefited from the unpaid tax, and who agreed to pay may all be relevant, but no divorce document should be assumed to eliminate IRS collection rights by itself.
What Did the Requesting Spouse Know or Have Reason to Know?
Knowledge is not always determined solely by whether the requesting spouse understood tax law. The IRS may examine what the person knew about the income, expenses, accounts, business activity, household finances, and circumstances surrounding the return.
Abuse, Coercion, and Control of Household Finances
Abuse, threats, coercion, or control of finances can affect how the IRS evaluates knowledge, fairness, and the circumstances surrounding the signing of a joint return. A taxpayer may have known that something on a return was questionable but felt unable to challenge the spouse because of fear or control.
These facts should be handled carefully. A public website cannot determine what should be disclosed or how sensitive evidence should be presented. Confidential legal review can help determine which facts, documents, and safety concerns are relevant to the request.
The IRS recognizes that abuse, fear, pressure, or threats may affect whether a taxpayer challenged errors on a joint return.
What Happens After Form 8857 Is Filed?
After Form 8857 is filed, the IRS reviews the request and generally contacts the nonrequesting spouse or former spouse to determine whether that person wants to participate in the process. Both sides may have an opportunity to provide information.
Do not assume the request will remain confidential from the spouse or former spouse as to its existence. Sensitive personal information, safety concerns, and supporting evidence should be reviewed carefully with counsel before filing.
What to Gather Before Requesting Innocent Spouse Relief
Innocent spouse cases are fact-specific. The way the request is explained and documented can make a major difference.
The more clearly your position is documented, the stronger the request can be. Attorney guidance can help organize the facts, identify weaknesses, and present the request in a way that addresses the IRS’s concerns.
Innocent Spouse Relief and IRS Collection
A Form 8857 request should be coordinated with any active levy, lien, wage garnishment, installment agreement, or Collection Due Process deadline. Do not assume that filing the request eliminates every collection concern or extends every unrelated appeal deadline.
If a joint balance is already in enforced collection, the taxpayer should preserve each notice and evaluate both the innocent-spouse request and the separate collection procedure.
If you received a final collection notice, review your rights to a Collection Due Process hearing. If the IRS is threatening wages or bank accounts, review our page on IRS levies and wage garnishment. If a lien has been filed, review our federal tax lien page.
How a Tax Attorney Can Help
Innocent spouse relief is factually driven, especially when applying for equitable relief. IRS guidance and court decisions can affect how facts are evaluated, which makes preparation important.
A tax attorney can help develop the facts surrounding the claim, evaluate whether innocent spouse relief, separation of liability relief, or equitable relief may apply, and organize the request with the most relevant records and explanation.
Todd S. Unger helps taxpayers understand the available options, respond to IRS collection pressure, and pursue the relief strategy that best fits the facts of the case.
Innocent Spouse Relief FAQs
Can I get innocent spouse relief after divorce?
Possibly. Divorce or separation may be relevant, but it does not automatically qualify you. The IRS will look at the facts, including what you knew, your involvement with the return, and whether holding you liable would be unfair.
Will the IRS contact my spouse or former spouse?
Generally, the IRS must notify the nonrequesting spouse and provide an opportunity to participate in the process. The requesting spouse should discuss sensitive information, safety concerns, and supporting evidence with counsel before filing.
Can the IRS still collect from me while my request is pending?
Collection activity may be affected by the timing and status of your request, but collection consequences should be reviewed separately. If you are already receiving IRS collection notices, it is important to act quickly and have the notices reviewed.
What if I signed the joint tax return?
Signing a joint return does not automatically prevent relief, but the IRS will evaluate whether you knew or had reason to know about the understatement or unpaid tax.
Can innocent spouse relief remove penalties and interest?
If relief is granted, it may affect the tax, penalties, and interest connected to the portion of the liability for which you are relieved.
What is the difference between understated tax and unpaid tax?
An understatement generally means the return reported less tax than was legally due. An underpayment generally means the return reported tax due, but the balance was not paid. The distinction matters because different innocent-spouse relief categories may apply.
What if innocent spouse relief does not apply?
Other options may still need to be reviewed, including IRS installment agreements, penalty abatement, or Offer in Compromise options.
Request a Confidential Innocent Spouse Relief Consultation
If the IRS is trying to collect a joint tax debt from you, Todd S. Unger can help evaluate whether innocent spouse relief, separation of liability relief, equitable relief, or another tax resolution strategy may apply.