The concept of marriage involves two individuals uniting to become one. Creditors honor that oneness. If your spouse has unpaid debt, a creditor can seek to garnish his tax refund. If you are filing a joint tax return, your portion of the refund is likely garnished as well. The good news is that there are things you can do to protect yourself and reclaim your half of the refund.
When you file a joint tax return, there is no way for creditors to distinguish which portion of the refund belongs to you and which to your spouse. If your spouse has an outstanding judgment against him and the creditor has a court order to garnish wages, your entire tax refund may be garnished. It all depends on whether the creditor sends the garnishment order to the Internal Revenue Service (IRS).
Federal & State Garnishment
If your spouse owes federal or state back taxes, the IRS has the right to hold the entire joint refund to satisfy the debt. If your spouse owes child support, the joint refund may be garnished. The refund can also be garnished by the United States Department of Education (DOE) if your spouse defaults on a student loan. Even though you have nothing to do with the back taxes, child support, or student loan debt, your half of the refund can also be taken.
As a married couple, you only have two filing status options. The first option is “Married Filing Jointly.” The second is “Married Filing Separately.” By filing a separate tax return, you protect your refund from garnishments. The only way your refund is garnished, when filing a separate return, is for your own debts, not your spouse's. The downside of filing a separate tax return is that you qualify for fewer tax breaks. However, the amount of money you get back may be worth giving up the breaks.
If It Happens
If your half of a joint refund is garnished, request that the IRS reimburse you. To do this, complete IRS Form 8379, “Injured Spouse Allocation.” If your joint refund is garnished because your spouse lied to the IRS about income, deductions or credits, you can request exemption from garnishment. To request exemption, complete IRS Form 8857, “Request For Innocent Spouse Relief.” Forms 8379 and 8857 are available on the IRS website.