Possibly. A joint return makes both spouses responsible for the whole tax, even after a divorce, but section 6015 of the Internal Revenue Code offers three ways out: innocent spouse relief for an understatement you did not know about, separation of liability for spouses who are divorced, separated or living apart, and equitable relief when holding you liable would be unfair. One form, Form 8857, asks for all three, and the first two generally must be requested within 2 years after the IRS begins collecting from you.
Relief turns on facts: who earned the income, who kept the records, what you knew when you signed, and what has happened since. Kathryn Meyer's page on IRS collections and enforcement notes that spouses and former spouses are often pursued for tax that belongs to the other; this page explains the rules.
Why are you liable for your spouse's tax?
When you file jointly, the IRS says, you are both responsible for the tax and any interest or penalties, even if you later divorce, a divorce decree says your spouse is responsible, or your spouse earned all the income. A divorce decree does not change that, which is why relief has to be requested from the IRS itself.
What are the three types of relief?
| Type | What it covers | Main conditions | Deadline |
|---|---|---|---|
| Innocent spouse relief (IRC 6015(b)) | Understated tax from your spouse's erroneous items | You did not know and had no reason to know of the understatement when you signed, and it would be inequitable to hold you liable | 2 years after the IRS begins collection activity against you |
| Separation of liability (IRC 6015(c)) | Your share of a deficiency is limited to the items allocable to you | Divorced or legally separated, or not in the same household for the 12 months before you file; no actual knowledge of the item | After a deficiency is asserted, and within 2 years after collection activity begins |
| Equitable relief (IRC 6015(f)) | Understated tax or tax shown on the return but not paid | The other two do not apply and it would be inequitable to hold you liable | Unpaid tax: while the IRS can still collect; paid tax: within the refund claim period |
You do not have to pick a type. The IRS says it considers all three when you file Form 8857 and applies whichever you qualify for. Equitable relief is the only one that reaches a balance that was correctly reported but never paid.
What does "knowing" about the error mean?
The IRS says you cannot get innocent spouse relief for an understatement if you actually knew of the error, or if a reasonable person in your situation would have known. Actual knowledge includes knowing your spouse received unreported income, knowing facts that made a deduction or credit improper, or knowing that expenses were false or inflated. For separation of liability, the IRS must prove actual knowledge of the item, and section 6015(c) does not count that knowledge against you if you show you signed the return under duress.
The IRS describes an exception for victims of domestic abuse: you may qualify even if you knew of the errors if you were abused before signing, did not challenge the return out of fear, or signed because you were pressured or threatened. The Form 8857 instructions also point to Rev. Proc. 2013-34, which widened how the IRS weighs abuse and financial control in equitable relief cases.
When must you ask?
The Form 8857 instructions say to file as soon as you learn of a liability you believe is your spouse's, and not to delay because you are missing documents. The 2-year period for the first two types starts with the first IRS collection activity against you, which the instructions say can include:
- a section 6330 notice of intent to levy and right to a hearing;
- an offset of your refund against the joint debt, when the IRS told you about your right to file Form 8857;
- an IRS claim in a court case you are part of, including a bankruptcy proof of claim; or
- a lawsuit by the United States to collect the joint liability.
The IRS's summary page phrases the deadline as 2 years from an IRS notice of an audit or of taxes due; the statute measures it from the start of collection activities, so filing early avoids any question. A request also pauses the IRS's 10-year collection clock for the requesting spouse, as explained in how long the IRS has to collect a tax debt.
What is not covered?
According to the IRS, innocent spouse relief does not reach tax on your own income, household employment taxes, individual shared responsibility payments, business taxes, or trust fund recovery penalties. You are also not eligible for a year if you signed an offer in compromise or a closing agreement covering the same taxes, or if a court made a final decision denying you relief or you took part in a related court case without asking for it.
What happens after you file Form 8857?
- Mail the form to the address in its instructions; it is not filed with your tax return or with the Tax Court.
- The IRS contacts your spouse or former spouse, who may take part.
- The review may take 6 months or longer. Keep filing and paying your own taxes in the meantime.
- The IRS issues a determination letter. Either spouse can generally appeal to the Independent Office of Appeals within 30 days of the letter's date.
Under section 6015(e), you can petition the U.S. Tax Court within 90 days after the IRS mails its final determination, or after 6 months if it has not decided. While that window is open, and during a Tax Court case, the IRS cannot levy for the tax covered by the request. The Tax Court decides the question fresh, but based on the administrative record plus newly discovered or previously unavailable evidence, so the facts and documents you give the IRS at the start matter. The court stage is explained in whether you can take an innocent spouse denial to the Tax Court. If relief results in an overpayment, section 6015(g) allows a refund, subject to the usual limits in how long you have to claim a tax refund.
Spousal defenses can also be raised in a Collection Due Process hearing if a levy notice arrives first. Section 6015 decisions are made without regard to community property laws; Publication 971 explains the separate relief available for community income.
Many requests follow a divorce, and the settlement agreement is the place to deal with joint-year taxes; see what tax issues to settle in a divorce.
What changes the answer
For equitable relief, Publication 971 lists the factors the IRS weighs, none of them decisive on its own:
- Marital status: whether you are no longer married to the other spouse.
- Economic hardship: whether paying the tax would leave you unable to meet reasonable basic living expenses.
- Knowledge: whether you knew or had reason to know of the item or that the tax would not be paid.
- Legal obligation: whether a divorce decree or binding agreement makes the other spouse responsible for the tax.
- Significant benefit: whether you received a benefit beyond normal support from the unpaid or understated tax.
- Compliance: whether you have filed and paid your own taxes since.
- Mental or physical health when the return was filed or when you request relief.
Abuse or financial control by the other spouse can outweigh knowledge, as the instructions note under Rev. Proc. 2013-34.
For example: a former spouse's unreported business income
For example, imagine a woman who filed joint returns for 2022 with her then-husband, who ran a consulting business and handled the family finances. They divorced in 2024. In 2026 the IRS assessed tax on business income he had not reported, and later sent her a notice of intent to levy, the first collection activity against her. She files Form 8857 within two years of that notice, explaining that she had no access to the business accounts and did not see the deposits. Because she is divorced, she can also ask for separation of liability, which would limit her share to items allocable to her unless the IRS proves she actually knew of the income. Whether relief is granted depends on the facts and the record she builds. This is a hypothetical, not a real case or result.
Common mistakes with innocent spouse requests
- Waiting for documents. The instructions say not to delay filing because records are missing.
- Confusing it with injured spouse relief. If the IRS took your share of a joint refund to pay your spouse's past-due debts, the form is Form 8379, not Form 8857.
- Asking only for one type. The IRS considers all three, so give facts that support each.
- Leaving facts for the Tax Court. The court generally reviews the administrative record plus newly discovered evidence.
- Signing an offer or closing agreement first. Either can make you ineligible for the same taxes.
What to do this week
- List each joint return year at issue and what the IRS says is owed for each.
- Find the date of the first collection activity against you, such as a levy notice or refund offset.
- Write down what you knew about the item or the unpaid tax, and why.
- Gather the divorce decree or separation agreement, and any records of abuse or financial control.
- Complete and mail Form 8857 to the address in its instructions, and keep proof of mailing.
- Keep filing and paying your own taxes while the request is reviewed.
Frequently asked questions
Will your former spouse be told about the request?
Yes. The IRS contacts the other spouse, who may take part in the process and can generally appeal the determination too.
Can your representative sign Form 8857 for you?
Only if your Form 2848 describes innocent spouse relief on line 3; see how a tax attorney represents you before the IRS.
Does a pending request stop collection?
Levies on the requesting spouse are generally barred for the covered tax while the request and any Tax Court case are pending. A levy that already hit your account is covered in how to get a bank or wage levy released.
Does a request affect a passport certification?
The IRS does not count debts suspended because of an innocent spouse request as seriously delinquent; see whether unpaid taxes can cost you your passport.
Can you make an offer in compromise instead?
The IRS asks you to resolve a pending innocent spouse claim before submitting an offer; see whether you qualify for an IRS offer in compromise.
Where is a Tax Court case heard?
In the U.S. Tax Court, after the IRS's final determination or six months without one; the firm's tax litigation practice covers that stage.
Getting help with a request
A Form 8857 request is often decided on the written record you build at the start. Kathryn Meyer spent more than two decades in the IRS Office of Chief Counsel and helps spouses and former spouses present these requests and, where needed, take them to the Tax Court. To discuss your situation, contact the firm or call (571) 560-8674.