Marriage is based on sharing, but not all taxpayers want to share their spouse's tax debt. The Internal Revenue Service respects this and there are ways you can avoid the repercussions of back taxes your husband hasn't paid. The easiest way is to avoid filing a joint married return with him, but this may not work in all cases.
With one or two exceptions, spouses are not responsible for premarital tax liabilities owed by their partner. If your husband's tax debt is the result of returns he filed before you were married, you typically have no obligation to pay them.
Joint Vs. Separate Returns
One exception exists exists to this general rule. if you file a joint married return with your husband and he owes taxes from before you were married, the IRS will most likely keep the entirety of any refund to satisfy his debt, assuming the debt is more than the refund. Otherwise, it will keep a portion equal to the taxes owed. The IRS won't automatically recognize that half the refund is yours. If you file a separate married return in these circumstances, the IRS typically won't take your personal refund. The downside to filing separately is that you may lose out on some tax breaks. Taxpayers who file separate married returns typically pay more in taxes for a number of reasons, one of which is the fact that they can't qualify for certain credits, such as those associated with educational expenses and dependent care.
Injured Spouse Relief
If you elect to file a joint married return with your husband to avail yourself of the tax advantages, you're not doomed to losing your share of the refund. However, you have to take additional steps to claim it. The IRS will apply it to his debt unless you file Form 8379. Form 8379 is an injured spouse allocation. When the IRS receives it, it should divert your fair share of the refund to you, provided you qualify. To qualify, you must have earned income that was reported on the return. You must either have paid taxes on your income, such as through tax withholding on your earnings, or you must be eligible for a refundable tax credit. You must also have no liability for your husband's tax debt because it's premarital or because it results from his separate return.
Community Property Estates
The situation becomes more complicated if you live in a community property state: Louisiana, New Mexico, Washington, Wisconsin, Texas, Nevada, Idaho, California and Arizona. In some of these states, the law allows the IRS to collect past due taxes from either spouse, regardless of who owes them or who filed and signed the return. It's not a blanket rule applying to all community property states, however, so if you have a concern, speak with a tax professional. If you live in one of these jurisdictions, it doesn't matter how you file. The IRS can take your refund to satisfy your husband's debt and it can even garnish your own personal wages to pay it.
Beverly Bird has been writing professionally for over 30 years. She specializes in personal finance and w, bankruptcy, and she writes as the tax expert for The Balance.