Can I File as Married Filing Jointly if a Spouse Owes Child Support?

by Alan Sembera Google

    You might be used to a nice income-tax refund check every year. But if you marry and your new hubby owes back child support, you may be in for a surprise. Filing a joint tax return with a spouse who owes child support can cause you to lose your refund. Fortunately there are things you can do to prevent it.

    Overview

    The IRS regularly keeps the refunds of taxpayers who owe certain debts such as child support, student loans or back taxes. This "refund offset" remains in effect until the debt is paid off. If your spouse owes the debt and you file a joint return, the IRS will automatically offset the entire refund unless you file an injured spouse claim with your return.

    Filing Separately

    You can file separately from your spouse to avoid having to file an injured spouse claim, but filing separately prevents you from claiming certain benefits such as the earned income credit and education credits. It also may lower your IRA contribution limits. And if you live in a community property state, the IRS can still legally offset part of your refund to pay your spouse's child support, even if you file separate returns. However, filing separately may result in a faster tax refund, since a joint tax return with an injured spouse claim can take up to 14 weeks to process.

    Injured Spouse

    To claim injured spouse status you must fill out and attach Form 8379, Injured Spouse Allocation, to your tax return. If you are submitting a paper return, write "INJURED SPOUSE" on the upper-left corner. If you already filed your return and the IRS kept the refund, you can still file Form 8379 by itself, although it can take eight weeks or longer to get your share of the refund back. When you file an injured spouse claim, the IRS figures your share of the refund by comparing how much you would have received had you filed a separate return against how much your spouse would have gotten. Each spouse's income, withholding, credits and deductions are figured separately. If you have no income or withholding, generally you will not qualify for a refund.

    Comunity Property States

    In community property states, both spouses' incomes and withholding are treated as belonging jointly to both spouses, so in most cases an injured spouse can get half the refund. The rules for dividing community income on an injured spouse claim can vary by state, so it might be wise to consult a tax professional regarding your personal situation.

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    About the Author

    Alan Sembera began writing for local newspapers in Texas and Louisiana. His professional career includes stints as a computer tech, information editor and income tax preparer. Sembera now writes full time about business and technology. He holds a Bachelor of Arts in journalism from Texas A&M University.

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