How To Request Innocent Spouse Relief

You filed a joint tax return. Now the IRS says you owe additional tax—but the problem was your spouse's income, your spouse's deductions, or your spouse's failure to report. Under federal law, joint filers are both responsible for everything on the return. The IRS can collect the entire amount from either spouse, meaning you could owe thousands for a tax problem you didn't cause.

But there is a way out. IRC Section 6015 provides three forms of innocent spouse relief that can remove or limit your liability for your spouse's tax mistakes. This guide explains the three types, what you need to prove, and how to request relief—including how to petition the Tax Court if the IRS says no.

Joint and Several Liability: Why You're on the Hook

When you sign a joint return, you agree to joint and several liability—each spouse is individually responsible for the full tax debt, not just half (IRC Section 6013(d)(3)). The IRS can collect the full amount from either spouse, regardless of who earned the income or claimed the deduction.

This rule survives divorce. A divorce decree that says "he pays the taxes" does not bind the IRS. It may give you a claim against your ex-spouse, but the IRS can still come after you for the full balance. Innocent spouse relief under IRC Section 6015 is the statutory way out.

The Three Types of Relief

IRC Section 6015 provides three distinct paths. You don't have to choose—the IRS automatically evaluates you for all three when you file Form 8857, Request for Innocent Spouse Relief.

Two key terms run through all three types. Understated tax means the return showed less tax than was actually owed—for example, your spouse failed to report $30,000 in income. Unpaid tax means the return was correct but the tax wasn't paid.

Traditional Innocent Spouse Relief—IRC Section 6015(b)

This applies when there is an understatement of tax—the return understated the amount owed because of your spouse's unreported income, incorrect deductions, or erroneous credits. To qualify, you must meet all of these requirements:

1. You filed a joint return for the tax year in question
2. The understatement is due to erroneous items of the other spouse—unreported income they received, or deductions, credits, or basis amounts they claimed improperly
3. When you signed the return, you did not know and had no reason to know that the understatement existed
4. Considering all the facts and circumstances, it would be inequitable (unfair) to hold you liable
5. You filed Form 8857 within two years of the date the IRS first began collection activities

The "knew or had reason to know" standard is the critical test. It asks whether a reasonable person in your situation would have known about the understated tax. The IRS considers the nature and size of the erroneous item, your education and financial sophistication, your involvement in the family finances, and whether the item departed from prior years' patterns.

Partial relief is available if you knew about some items but not the full extent (IRS Publication 971, p. 6).

What this type does not cover: underpayments. If the tax was correctly reported on the return but simply not paid, Section 6015(b) does not apply. For that, you need equitable relief.

Separation of Liability—IRC Section 6015(c)

Instead of asking whether it's unfair to hold you liable, separation of liability allocates the deficiency between spouses based on who was responsible for each item, as if you had filed separate returns.

To be eligible, you must meet one of these conditions at the time you file Form 8857:

• You are divorced or legally separated
• You are widowed
• You have not lived in the same household as that spouse at any time during the 12 months before filing Form 8857

Temporary absences—imprisonment, illness, military service, vacation, or education—don't count as living apart if the absent spouse is expected to return (IRS Publication 971, p. 7).

If you qualify, the deficiency is split and you are only liable for your portion. Refunds are not available under this type.

Important limitations: if the IRS proves you had actual knowledge of the erroneous item, that item stays with you (with an exception for domestic violence victims). Fraudulent asset transfers between spouses disqualify you entirely.

The filing deadline is two years from the first IRS collection activity.

Equitable Relief—IRC Section 6015(f)

Equitable relief is the catch-all—available when you don't qualify for Section 6015(b) or (c), and the only type that covers unpaid tax (tax correctly reported but not paid).

There is no two-year filing deadline. For a balance due, file before the collection statute expires—generally 10 years from assessment under IRC Section 6502. For a refund, file within three years of when the return was filed or two years from payment, whichever is later.

The IRS evaluates equitable relief requests under Rev. Proc. 2013-34, which uses a multi-factor balancing test. No single factor is controlling. The key factors:

• Marital status: No longer married weighs in favor; still married is neutral
• Economic hardship: Hardship weighs in favor; no hardship is neutral (not negative)
• Knowledge or reason to know: Didn't know weighs in favor; knew weighs against
• Legal obligation: Divorce decree assigning liability to the other spouse weighs in favor
• Significant benefit: Lavish lifestyle from the unpaid tax weighs against; normal support is neutral
• Tax compliance: Good compliance since the year at issue weighs in favor
• Mental or physical health: Health problems at filing time or at the time of the relief request weigh in favor

Streamlined Determinations

The IRS makes a streamlined determination—essentially a fast track to approval—when you can establish all three of these conditions:

1. You are no longer married to or living with the other spouse
2. You would suffer economic hardship if relief were not granted
3. You did not know or have reason to know of the understatement or that the other spouse would not pay the tax

Equitable relief is the most commonly granted form of innocent spouse relief.

How To Request Relief: Form 8857

The process starts with Form 8857, Request for Innocent Spouse Relief. There is no fee to file. Do not file Form 8857 with your tax return or the Tax Court—mail it to: Internal Revenue Service, P.O. Box 120053, Covington, KY 41012, or fax it to 855-233-8558.

The form asks about your marital status, education, involvement in the family finances, current financial situation, and whether you experienced domestic violence. Part VII includes a checkbox to request a refund—if you want one, you must check it. If the tax years involve different spouses, file a separate Form 8857 for each.

Deadlines

The two-year deadline for Section 6015(b) and (c) runs from the date the IRS first began collection activities—such as offsetting your refund, filing a collection suit, or issuing a notice of intent to levy (Form 8857 instructions, p. 1). Equitable relief has a longer window: before the collection statute expires, generally 10 years from assessment.

What Happens After You File

The IRS must notify the other spouse and give that spouse a chance to participate—there are no exceptions, even for domestic violence victims (IRC Section 6015(h)(2)). The IRS will not disclose your current address, phone, employer, or financial details, but other information from Form 8857 may be shared. Redact personal details in attachments.

The IRS sends a preliminary determination to both spouses. If neither appeals, a final determination follows. If either appeals, the IRS Independent Office of Appeals issues the final determination.

Collection is suspended while your request is pending, though interest and penalties continue to accrue. Be aware: after the case is resolved, the 10-year collection period is extended by the time your request was pending plus 60 days. Processing typically takes six months or longer.

If the IRS Denies Your Request

If the IRS denies innocent spouse relief, you have the right to petition the Tax Court.

The Tax Court has jurisdiction under IRC Section 6015(e)—a standalone petition right that does not require a Notice of Deficiency. You can petition after the earlier of the date the IRS mails its final determination letter or six months after you filed Form 8857.

The deadline is 90 days from the final determination letter. Miss it and the Tax Court cannot review your request.

The Tax Court reviews innocent spouse claims de novo under IRC Section 6015(e)(7) (added by the Taxpayer First Act of 2019)—it makes its own determination based on the administrative record and any newly discovered evidence. This is why building a strong record with Form 8857 matters.

File using Form 2 from the Tax Court Petition Kit, which includes a checkbox for innocent spouse determinations. The filing fee is $60, with fee waivers available. If the relief sought is $50,000 or less for all years combined, small tax case procedures apply under IRC Section 7463(f)—simpler but not appealable.

You can also raise innocent spouse relief as a defense in an existing deficiency case. If you received a Notice of Deficiency, file Form 8857 with the IRS and raise the issue before the Tax Court at the same time. For a full walkthrough, see How To File Your Tax Court Petition. Collection stays paused during the 90-day petition period and while the case is pending.

Domestic Violence and Abuse

Under Rev. Proc. 2013-34, abuse is defined broadly: physical, psychological, sexual, or emotional abuse, including efforts to control, isolate, or undermine the requesting spouse's ability to reason independently. Abuse can cause factors that would otherwise weigh against relief to weigh in favor. If the other spouse controlled the finances and you signed only because of coercion, the knowledge factor may still weigh in your favor.

If you signed the return under duress—threat of harm or other coercion—the return may not be a valid joint return at all. In that case, you may not need IRC Section 6015 relief, but you may need to file a separate return for that year (IRS Publication 971, p. 8).

Form 8857, Part V includes a dedicated domestic violence section. Attach protective orders, police reports, medical records, and witness statements. If you petition the Tax Court, the other spouse may see your information unless you ask the Court to withhold it.

National Domestic Violence Hotline: 1-800-799-SAFE (7233)

Injured Spouse vs. Innocent Spouse

These sound similar but address completely different problems.

You can file both forms if both situations apply to you.

Community Property States

If you live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin, community property laws may create additional options—or complications. For purposes of innocent spouse relief under IRC Section 6015, community property rules are disregarded when determining which spouse is responsible for each item. However, married persons in community property states who did not file a joint return have a separate path to relief with its own deadlines. See IRS Publication 971, pp. 4-5 for details.

Evidence That Strengthens Your Case

The administrative record you build with Form 8857 is what the Tax Court reviews if the IRS denies your claim. Include:

• Financial records showing you didn't benefit—bank statements in the other spouse's name, accounts you had no access to
• Divorce decrees and separation agreements assigning the tax debt to the other spouse (weighs in your favor under equitable relief, even though it doesn't bind the IRS)
• Evidence of abuse or coercion—protective orders, police reports, medical records
• Your own background—education level, tax knowledge, work history
• IRS transcripts showing the understatement and collection activity
• Evidence you didn't know—separate accounts, limited access to financial information

For guidance on organizing evidence, see How To Prepare Your Evidence for Tax Court.

Common Mistakes

Missing the two-year deadline for Section 6015(b) and (c). If you miss it, equitable relief under Section 6015(f) may still be available—but don't count on it.

Assuming a divorce decree protects you. It doesn't bind the IRS. It's one factor in the equitable relief analysis, but it does not eliminate joint and several liability on its own.

Not providing enough documentation. A bare Form 8857 with no attachments is harder for the IRS to approve. The administrative record you build now is what the Tax Court will review later.

Not petitioning the Tax Court after a denial. The 90-day deadline to petition is strict. Miss it and the Tax Court cannot review your case.

Not realizing relief is barred. If a court has already considered your joint liability, you entered into an offer in compromise, or you signed a closing agreement with the IRS for the same liability, you generally cannot request innocent spouse relief (IRS Publication 971, p. 3).

Get Help

If your income is below 250% of the poverty line and your dispute is $50,000 or less, a Low Income Taxpayer Clinic can help you file Form 8857, gather evidence, and represent you before the IRS or Tax Court at no cost. For IRS questions about innocent spouse relief, call 855-851-2009.

Resources

• Form 8857, Request for Innocent Spouse Relief and Instructions
• IRS Publication 971, Innocent Spouse Relief
• IRS Innocent Spouse Relief Overview
• Rev. Proc. 2013-34 (IRB 2013-43, p. 397)—equitable relief factors
• IRC Section 6015—Relief From Joint and Several Liability
• Tax Court Petition Kit—includes Form 2 with innocent spouse checkbox
• DAWSON Portal—file your petition electronically
• National Domestic Violence Hotline—1-800-799-SAFE (7233)
• How To File Your Tax Court Petition
• How To Find and Use a Low Income Taxpayer Clinic
• How To Get and Read Your IRS Transcripts
• How To Prepare Your Evidence for Tax Court
• You Just Got a 90-Day Letter From the IRS
• How To Request IRS Penalty Abatement
• You Missed the 90-Day Deadline. Now What?
• Collection Due Process Hearings—you can raise innocent spouse relief during a CDP hearing

This article is for informational purposes only and does not constitute legal or tax advice. For advice specific to your situation, consult a qualified tax professional or attorney.