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Lev, Tax Advisor
Category: Tax
Satisfied Customers: 29577
Experience:  Taxes, Immigration, Labor Relations
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I was divorced from my wife of 31 years in 2011. We jointly

Customer Question

I was divorced from my wife of 31 years in 2011.
We jointly owe an IRS tax debt from 2007 filed in 2008 around 4-k but according to the decree I am to pay it and have been making payments. I want to protect my former wife from paying it.
I am filing chapter 7 bankruptcy in the next 60 days.
Can I get a separation of liability after this much time since my income is the cause of the deficient?
Can I reaffirm the debt to protect my former spouse?
Submitted: 1 year ago.
Category: Tax
Expert:  Lev replied 1 year ago.

When filing jointly, both taxpayers are jointly and severally liable for the tax and any additions to tax, interest or penalties that arise from the joint return even if they later divorce. Joint and several liability means that each taxpayer is legally responsible for the entire liability. Thus, both spouses on a married filing jointly return are generally held responsible for all the tax due even if one spouse earned all the income or claimed improper deductions or credits. This is also true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns.
So - if you will file for the bankruptcy protection - and YOUR debt will be cancelled - that will NOT affect your spouse's debt - and she still will be liable.
Your spouse however - may apply for the Separation of Liability Relief - if she qualify - but that is NOT related to how your liability is handled.
According to the IRS - to qualify for separation of liability relief, you (in this case - means your ex-spouse) must have filed a joint return and must meet one of the following requirements at the time you request relief:

  • You are divorced or legally separated from the spouse with whom you filed the joint return
  • You are widowed or
  • You have not been a member of the same household as the spouse with whom you filed the joint return at any time during the 12-month period ending on the date you request relief

To seek innocent spouse relief, separation of liability relief, your ex-spouse should submit to the IRS a completed Form 8857 (PDF), Request for Innocent Spouse Relief, or a written statement containing the same information required on Form 8857

Customer: replied 1 year ago.
even though it has been quite past 2 years she can still file for separation of liability?How difficult is this to get accepted by the IRS?
Expert:  Lev replied 1 year ago.

The main issue - that YOUR and YOUR spouse's tax liability - are separate issues in view of the IRS.
In simple works - if your tax liability is cancelled via the bankruptcy procedure - that doesn't affect your spouse's liability - and wise versa.
If you are looking for the complete relief from the liability - each will need to file for the bankruptcy protection...
But if one spouse is looking for the Separation of Liability Relief - that spouse will need to apply and proof qualifications.
That might be someway complicated issue...

You may also refer to Publication 971, Innocent Spouse Relief, for more information.

But the main issue - your spouse should apply for the relief - you may not apply for her.

Expert:  Lev replied 1 year ago.

On your side - you may choose NOT to include your tax dent into bankruptcy application and not seek the discharge of your tax debt.