Getting married is a big deal. Outside of the expensive and onerous process of actually having a wedding, the marriage itself carries a lot of weight. Married couples are legally linked, sharing personal profit and loss relatively equally, and this includes at tax time. For most couples, taxes are just another laborious task required to live a law-abiding life, but for others, the reality is something much, much worse.

When a marriage is happy – or, at least, neutral – taxes are annoying but not necessarily problematic. When things go south, however, tax time can turn into the equivalent of a financial tactical strike. Previously, there has been little recourse for partners subjected to tyrannical tax filings from their not-so-better halves, but over the years, the IRS has taken steps to change this.

Weaponizing Taxes

Taxes are a frequent source of anxiety and irritation, but they’re not exactly enough to ruin your life, right? This is usually the case, but in abusive or otherwise problematic circumstances, the opposite can be true.

Take, for example, a situation in which one partner in a marriage is abusive. Perhaps he controls the finances and refuses to let his spouse know more than absolutely necessary about income or bank balances. Maybe he’s cruel emotionally and physically as well, creating a situation that leaves no outcome except escape and, ultimately, divorce. But say that abusive partner hasn’t been paying taxes, choosing intentionally to defraud the IRS for one reason or another. When the IRS comes knocking, the abusive partner isn’t exclusively on the hook – instead, both spouses are responsible for the money owed, including the innocent party. While it’s easy to say that both spouses should have an idea of the accuracy of a tax return, this isn’t always going to be the case: even in happy marriages, it’s not uncommon for one spouse to take the proverbial reins. If a marriage has any trust at all – or if an abusive relationship doesn’t permit a free-flowing transfer of information – signing a return is often an afterthought for at least one spouse.

Unfortunately, if the abused spouse is the only one working, or the one bringing in more money at the time of an IRS assessment, the onus will fall onto them – not the partner who caused problems in the first place. And this is, of course, blatantly unfair.

Innocent Spouse Relief

In the eyes of the IRS, two partners who file jointly are both 100% responsible for the information reported on a tax return, and there are very few ways to get around this. However, when outstanding circumstances apply, a truly innocent spouse may be permitted to avoid culpability.

In a remarkably human gesture, the IRS maintains a backdoor known as innocent spouse relief. Essentially acknowledging that there are unique situations in which one spouse is truly not responsible for sizable errors in a tax return, the IRS will occasionally grant what is effectively immunity on a case by case basis. Unfortunately, this protection is exceptionally challenging to secure, even when eligibility seems obvious and clear-cut. Innocent spouse relief is only available for individual income or self-employment tax; other forms of income, like dividends, aren’t eligible.

To even be considered for innocent spouse relief, the following criteria must be met:

1. An erroneous return caused by one spouse’s actions, like a job under the table for which wages were not reported
2. The other spouse did not know, and did not have reason to know, that this error occurred
3. It would be unfair to hold the other spouse responsible for the errors

Situation plays strongly into how these criteria are interpreted. If one spouse, for example, states that he was unaware of his partner’s misstatements and signed the return without reading it, he would not have a case in any capacity. However, if one spouse is physically abusive and forced a signature under threat of bodily harm, there’s a chance the IRS may choose to offer relief. In even rarer circumstances, partial relief may be offered if there is some evidence a spouse knows of a portion of the erroneous material, but not all of it.

To apply for innocent spouse relief, the spouse in question must file Form 8857 and provide as much detail in response to the questions asked as possible.  This particular form is extremely in-depth, asking for information on everything from the circumstances behind the errors on a tax return to current owned assets. If the IRS accepts your application, they will determine the amount, if any, of your portion of the tax burden for the year or years in question. However, if you’d like, you may attempt to calculate this amount yourself and provide it with your filing.

Loosening the Restrictions

As stated, the IRS has been notoriously difficult about granting relief for innocent spouses, even under circumstances that seem to be quite clear. As you may expect, this particular relief measure is frequently applied for – many, many spouses apparently believe they are not culpable for their partners’ poor tax decisions – making the likelihood of fraud high. Understandably, this has led the IRS to be hypercritical, but doing so has caused plenty of applicable cases to be dismissed over the years.

However, the IRS appears to be changing things. Several years ago, the IRS released Notice 2012-8, stating that the threshold for relief will be lower than in the past. Per the notice, the IRS is now willing to acknowledge that “abuse comes in many forms and can include physical, psychological, sexual, or emotional abuse, including efforts to control, isolate, humiliate and intimidate the requesting spouse, or to undermine the requesting spouse’s ability to reason independently and be able to do what is required under the tax laws. All the facts and circumstances are considered in determining whether a requesting spouse was abused.”

Historically, there have also been issues with timing. While the IRS has ten years to pursue collections, an innocent spouse relief request must generally be filed within two years. This is clearly problematic: if you were an abused spouse, left your partner, and cut off all ties, you may not be aware of potential erroneous items in a tax filing until the IRS comes to call. In essence, the two-year limit puts the burden of knowledge on an innocent spouse. This is quite unreasonable, leaving many innocent spouses with a good case out in the cold. Despite a proposal to lengthen this timeline several years ago, the current deadline remains at two years, but there are exceptions. For balances due, the deadline now mirrors the IRS’ 10 years’ collection, and different rules apply for refunds and requests on behalf of a decedent, for example. Before assuming the two years restriction disqualifies you, be sure to fully read the rules in Publication 971.

While it’s never going to be easy to seek relief as an innocent spouse, the IRS has made it easier than ever before. If you believe you may qualify for relief due to the circumstances of your personal life and have support for your case, filing Form 8857 may be worth your time. After all, when it comes to the IRS, it’s impossible to know how things will ultimately proceed – and the results may just surprise you.