Lincoln, NE asked in Child Support, Tax Law and Family Law for Nebraska

Q: if my spouse has back child support but does not have income for 2023 do i have to file injured spoues on joint return

2 Lawyer Answers
Julie Fowler
Julie Fowler
  • Omaha, NE
  • Licensed in Nebraska

A: You would need to speak with your tax professional for advice specific to your situation. In general, any refund from a joint tax return is generally subject to tax intercept for back child support owed by either spouse. However, if you file the injured spouse form you can generally prevent the intercept as to the amount of the refund related to income of the spouse who does not have the child support owed.

James L. Arrasmith
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  • Tax Law Lawyer
  • Sacramento, CA

A: If you're filing a joint tax return and your spouse has outstanding child support obligations but does not have any income for the year 2023, you may still want to consider filing an Injured Spouse Allocation form (Form 8379) with your tax return. This form is used to ensure that the portion of the refund attributable to your income is not used to cover your spouse's past due child support. Filing this form can protect your share of the tax refund, especially if you have earned income and are expecting a refund based on that income and any withholdings or credits associated with it.

The need to file Form 8379 depends on your specific situation, including whether your state's laws and the IRS's rules consider your refund at risk of being offset against your spouse's debts. Even if your spouse has no income for the year, the joint refund may still be subject to offset for their debts, such as back child support. Filing the injured spouse form helps to allocate the refund correctly between you and your spouse, potentially preventing your portion of the refund from being applied to their debt.

It's advisable to consult with a tax professional to understand how these circumstances apply to your situation. They can provide guidance on whether filing Form 8379 is necessary and beneficial in your case. A tax professional can also help with filling out and submitting the form correctly to the IRS, ensuring that you take the appropriate steps to protect your portion of any tax refund.

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