Fresh Start for Married Couples

Joint and several liability: what a joint return means

When a married couple files a joint federal return, the law makes the tax “joint and several” (IRC 6013(d)(3)). In plain terms, each spouse is responsible for the whole balance on that return, not half of it. The IRS can collect the full amount, plus interest and penalties, from either of you.

The IRS says this stays true even if:

• you later divorce;
• a divorce decree says your spouse is responsible for the taxes;
• your spouse earned all of the income.

That is why a couple’s tax problem often outlives the marriage. A refund you are owed on a later individual return can be applied to an old joint balance, and a levy on your wages can be issued for a joint year your former spouse promised to pay.

Three details matter before you look at relief:

• Only joint returns create joint liability. If you filed as married filing separately, you are generally responsible only for your own return. Filing separately in future years keeps new balances apart, although it often changes the couple’s total tax, so compare both before choosing.
• If you never agreed to a joint return, the IRS says the joint election is invalid. That is not innocent spouse relief; you raise it by following the instructions on the notice or calling the number on it.
• Community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) have extra rules. Married people there who filed separately can still be pulled into a spouse’s liability through community income, and Form 8857 covers that case too.

Payment plans and offers for couples: does one or both of you sign?

The Fresh Start Initiative did not create special rules for couples. A joint balance qualifies for the same options as any individual balance, with a few couple-specific mechanics.

For the full rules on each option, see IRS payment plans and the offer in compromise. Whether you qualify at all is covered in Fresh Start qualifications.

Innocent spouse vs separation of liability vs equitable relief

Form 8857 is one request that the IRS reviews under three different parts of IRC 6015. You don’t have to choose: the IRS says it “will consider all of your information and apply the type of relief, if any, that you are eligible for.”

Equitable relief is the only route when the joint return was correct but the tax was never paid, which is the most common couples’ Fresh Start situation. The IRS weighs factors such as your marital status, economic hardship without relief, whether you knew or had reason to know your spouse would not pay, whether you significantly benefited, your later compliance, and your mental and physical health.

What spouse relief cannot cover

• tax on your own income (with narrow exceptions under equitable relief, such as community property rules, funds your spouse took for their own use, abuse or fraud);
• household employment taxes, business taxes and trust fund recovery penalties;
• any year in which you signed an offer in compromise or a closing agreement for the same taxes, a court made a final decision denying relief, or you took part in a related court case without asking for relief.

Abuse and financial control

You may qualify even if you knew about an error, if you were a victim of spousal abuse or domestic violence before signing and did not challenge the return out of fear. Under Rev. Proc. 2013-34, abuse or financial control by your spouse, such as restricting your access to financial information, can weigh in favor of equitable relief even where you had reason to know.

Form 8857: when to file and what happens next

The IRS’s advice is to file Form 8857 (Rev. 6-2021 (IRS.gov, 6-2021)) as soon as you learn of a balance you believe only your spouse should owe, for example when an audit proposes more tax or a notice arrives. Do not wait until you have every document.

Deadlines

• Innocent spouse and separation of liability: no later than 2 years after the IRS first attempts to collect from you. The Form 8857 instructions list what starts that clock: offsetting your refund to a joint balance (when the IRS told you about Form 8857), a notice of intent to levy with collection due process rights (usually Letter 11 or Letter 1058), an IRS claim in a court case or bankruptcy involving you or your property, or a collection lawsuit against you.
• Equitable relief from a balance due: any time the IRS can still collect, which is generally 10 years (IRS.gov, 2026) from assessment, and longer if that period was suspended.
• Equitable relief for a refund: within 3 years after the return was filed or 2 years after the tax was paid, whichever is later.
• Community income on separate returns: no later than 6 months before the assessment period against your spouse ends (usually 3 years after filing), or within 30 days of an audit contact letter received during that window.

How to request relief

1. Gather the facts. Note the tax years, the notices you received and the date of the first collection action. Write down what you knew about the income or the payment when you signed.
2. Complete Form 8857. Explain why it would be unfair to hold you responsible and attach what supports it. The Tax Court may later be limited to what you gave the IRS, so include everything now.
3. Send it to the address or fax number in the instructions. Do not attach it to your tax return or send it to the Tax Court, even if you are already dealing with an IRS employee.
4. Protect a deficiency case. If you received a notice of deficiency, also petition the Tax Court within its 90-day window and raise innocent spouse relief there. Filing Form 8857 does not extend that deadline.
5. Keep filing and paying your own taxes. The IRS may take 6 months or longer to decide, and then sends a determination letter.
6. Appeal if needed. Either spouse can generally appeal within 30 days of the determination letter, or petition the Tax Court within 90 days after the final determination (or once 6 months pass with no determination).

What happens while the request is pending

• No levy for that year. The IRS generally cannot levy or sue to collect the tax covered by your request while it is pending, including any Tax Court review (IRC 6015(e)(1)(B)). Interest and penalties keep accruing.
• The collection clock pauses. The IRS’s collection period (normally 10 years from assessment) is suspended during that time and for 60 days after (IRC 6015(e)(2)).
• Your spouse is contacted. By law the IRS must notify your spouse or former spouse and let them take part. The IRS says there are no exceptions, even for abuse victims. It will not disclose your current name, address, phone, employer, income or assets, but other information you submit may be shared, so black out anything personal that isn’t needed.

Injured spouse is different: Form 8379

People often confuse the two because the names are so close. They solve different problems.

Form 8379 takes up to about 8 weeks to process by itself and longer when filed with a return. In a community property state, the IRS divides the refund under state law. If you are not responsible for the other obligation at all, Form 8379 is the right form. If the IRS says you owe tax because of your spouse, it is Form 8857.

Divorce, separation and the joint tax balance

A divorce ends the marriage, not the joint tax liability. A decree that assigns the IRS balance to your former spouse is an agreement between the two of you. It does not bind the IRS, which can still collect the full joint amount from either person. What changes after a divorce or separation is the set of options:

• Separation of liability opens up once you are divorced, widowed or legally separated, or have lived apart for the whole 12 months before filing Form 8857. It applies only to understated tax.
• Offers must be separate. Each former spouse submits an offer for their own responsibility, based on their own ability to pay.
• Your refunds are exposed. A refund on your own later return can be applied to the old joint balance, and that offset can start the 2-year Form 8857 clock.
• Payment plans need attention. If a joint plan was set up before the split, contact the IRS about it instead of assuming your former spouse will keep paying. A missed payment can put the plan in default.

Example (assumed figures)

A couple filed jointly and showed $18,000 of tax that was never paid. They divorce, and the decree says the former husband pays it. He pays nothing. The IRS can still collect the full $18,000, plus penalties and interest, from the former wife, for example by keeping her refunds. Because the return was correct and the tax was simply unpaid, innocent spouse and separation of liability do not fit. Her route is equitable relief on Form 8857, arguing she did not know and had no reason to know he would not pay. If she knew, she can still set up her own payment plan, or an offer based on her own finances.

Many people file Form 8857 on their own. Free help is available from the Taxpayer Advocate Service (877-777-4778 (IRS.gov, 2026)) when an IRS problem is causing hardship, and from Low Income Taxpayer Clinics for eligible taxpayers. Professional help is most useful when the facts are disputed, a Tax Court petition may be needed, or relief must be coordinated with a payment plan or offer. See DIY, free help or a professional, or our innocent spouse relief service.

Frequently asked questions

Keep reading in the Fresh Start hub

• IRS Fresh Start program overviewHow the Fresh Start Initiative works in 2026.
• IRS payment plansShort-term plans, the Simple Payment Plan and larger balances.
• Offer in compromiseWhen the IRS settles for less, and how joint offers work.
• Fresh Start qualificationsThe requirements for each option in one place.
• Behind on filing?Why every option starts with filed returns.