When you sign a joint tax return, you and your spouse each become responsible for the full tax on it. That stays true after a divorce, even if your divorce decree says your ex will pay, and even if your spouse earned all the income. Innocent spouse relief is the IRS's way of easing that rule when it would be unfair. If your spouse or former spouse hid income, claimed false deductions, or didn't pay a bill you thought was paid, you may be able to get some or all of the debt removed from your account.
The three types of relief
The IRS offers three kinds of relief. You do not need to pick one. When you file Form 8857, the IRS considers all three and applies whichever you qualify for.
| Type | What it does | Main requirements |
|---|---|---|
| Innocent spouse relief | Relieves you of extra tax caused by your spouse's errors | Joint return; tax understated because of your spouse's items; you didn't know and had no reason to know |
| Separation of liability relief | Splits the understated tax so you pay only your share | Joint return; you are divorced, separated, or no longer living with your spouse |
| Equitable relief | Relieves you when it would be unfair to hold you liable, including for tax that was reported but not paid | You don't qualify for the other two; fairness based on all facts |
Innocent spouse relief
This applies when your joint return understated the tax, meaning it reported too little, because of your spouse's errors. Examples include unreported income, wrong deductions or credits, or overstated values of assets. The IRS says you must show you didn't know about the errors. It looks at what you actually knew and whether a reasonable person in your position would have known.
The IRS says this relief covers tax on your spouse's income, not your own. It does not apply to household employment taxes, Individual Shared Responsibility payments, business taxes, or trust fund recovery penalties.
Separation of liability relief
If you are divorced, separated, or no longer living with your spouse, this relief divides the understated tax between you. You pay only the share that belongs to your own items.
Equitable relief
Equitable relief is the catch-all. It is the only type that can cover underpaid tax, meaning the return was correct but the bill wasn't paid. The IRS weighs all the facts, including:
- Your marital status
- Whether you would suffer economic hardship without relief
- Whether you knew or had reason to know about the understated or unpaid tax
- Whether you have a legal obligation, such as a divorce decree, that assigns the debt
- Whether you significantly benefited from the unpaid tax
- Whether you've complied with tax laws since
- Your mental and physical health
The IRS says it also considers your education, your involvement in household finances, your spouse's deceit, and your financial know-how.
Abuse and financial control
The IRS says you may qualify even if you knew about the errors if you were a victim of abuse before signing the return, or if you didn't question the return because you feared retaliation. Rev. Proc. 2013-34 expanded how the IRS weighs abuse and financial control by the other spouse in equitable relief cases.
Your spouse will be contacted. The Form 8857 instructions say the IRS must contact your spouse or former spouse, with no exceptions, even in cases of abuse. The IRS says it will not disclose your current name, address or phone number. Information used to decide your request could be shared with your spouse, so black out personal details you don't want shared on the papers you send. If you have safety concerns, consider getting help from a Low Income Taxpayer Clinic before you file.
Who is not eligible
The IRS says you can't get relief for a tax year if:
- You signed an offer in compromise covering that tax
- You signed a closing agreement covering the same taxes
- A court made a final decision denying you relief
- You took part in a court case about the tax and didn't ask for relief
Deadlines
| Type of relief | When to file Form 8857 |
|---|---|
| Innocent spouse or separation of liability | Generally no later than 2 years after the IRS's first attempt to collect the tax from you |
| Equitable relief for a balance due | Within the time the IRS has to collect the tax, generally 10 years from assessment (this period can be suspended) |
| Equitable relief for a refund | Generally within 3 years of filing the return or 2 years of paying the tax, whichever is later |
The Form 8857 instructions give examples of collection activity that start the 2-year clock. They include an IRS refund offset where you were told of your right to file Form 8857, a collection suit, and a notice of intent to levy with Collection Due Process rights, such as an LT11. The IRS advises asking for relief as soon as you learn of the tax problem.
How to apply
- Gather your documents. Collect the returns, notices, account transcripts and any divorce or separation papers. You can get transcripts online; see IRS transcripts.
- Complete Form 8857. Answer every question about your education, your role in the household finances, and what you knew. Explain the situation in your own words.
- Attach support. Include documents that back up what you say, such as proof of abuse, proof you were excluded from finances, or a divorce decree.
- Send it to the right place. Do not attach it to your tax return or send it to the Tax Court. The instructions list: P.O. Box 120053, Covington, KY 41012 (U.S. mail); 7940 Kentucky Drive, Stop 840F, Florence, KY 41042 (private delivery service); or fax 855-233-8558.
- Keep filing and paying your current taxes while you wait.
What happens next
The IRS reviews your request and contacts your spouse or former spouse to see whether they want to take part. The IRS says this can take up to 6 months or longer. You will get a determination letter with the decision.
- To appeal within the IRS, the IRS says you must generally appeal within 30 days of the date on the determination letter.
- To go to the U.S. Tax Court, the Form 8857 instructions say you must file a petition no later than 90 days after the IRS mails its final determination letter. If you haven't received a final determination within 6 months of filing Form 8857, you may petition then.
Innocent spouse vs. injured spouse
These names sound alike but solve different problems:
- Innocent spouse relief removes your responsibility for tax owed on a joint return.
- Injured spouse relief gets back your share of a joint refund that was taken to pay your spouse's separate debts, such as past-due child support or a debt to a federal or state agency. You use Form 8379 for that. See refund delays and offsets.
Getting help
These cases depend heavily on facts and on how well you explain them. A Low Income Taxpayer Clinic can represent you for free or a small fee if you qualify. For 2026, the income limit is generally 250% of the federal poverty guidelines, for example $39,900 for a household of one in the 48 contiguous states. A CPA, enrolled agent or tax attorney can also help. While you wait, collection may continue on some balances, so look at payment plans or currently not collectible status if you are struggling.
Frequently asked questions
My divorce decree says my ex pays the taxes. Doesn't that protect me?
Not from the IRS. The IRS says joint filers remain responsible even when a divorce decree assigns the debt to the other spouse. A legal obligation like that is one of the factors the IRS weighs for equitable relief. A family law attorney can tell you whether you can enforce the decree against your ex.
Do I have to choose which type of relief to ask for?
No. Form 8857 covers all three. The IRS reviews your situation and applies whatever relief you qualify for.
How long does an innocent spouse case take?
The IRS says up to 6 months or longer. Keep filing and paying your current taxes while you wait, and answer any IRS letters quickly.
Will my ex find out where I live?
The IRS says it will not disclose your current name, address or phone number to your spouse. It must still contact them about your request. Black out personal information on the papers you send if you don't want it shared.
I knew my spouse wasn't paying the tax. Can I still get relief?
Knowing generally weighs against you. But the IRS says abuse, fear of retaliation, and financial control can still lead to relief. Explain your circumstances fully on Form 8857, and consider help from a clinic or tax professional.
Is innocent spouse relief the same as injured spouse relief?
No. Innocent spouse relief deals with a tax debt on a joint return. Injured spouse relief, on Form 8379, recovers your share of a joint refund that was applied to your spouse's separate debt.
Sources
- Internal Revenue Service (IRS), "Innocent spouse relief". irs.gov
- IRS, "Equitable relief". irs.gov
- IRS, Instructions for Form 8857. irs.gov
- IRS, "Injured spouse relief". irs.gov
- Taxpayer Advocate Service, "Low Income Taxpayer Clinics". taxpayeradvocate.irs.gov
IRSV.com is an independent guide and is not affiliated with the IRS. This page is general information, not tax or legal advice. Rules change; confirm details on IRS.gov or with a tax professional. Found an error? Tell us.
