One of the most frustrating phone calls a person can make to their attorney starts like this: "I have a signed court order from my divorce judge saying my ex-husband is 100% responsible for our 2022 taxes. Why is the IRS garnishing my wages?"
It feels illegal. It feels like a violation of your court order. But in the eyes of the federal government, your divorce decree is a private agreement that does not bind the Internal Revenue Service.
Here is why your divorce decree isn't a "get out of jail free" card and how you can actually protect yourself using Separation of Liability and Innocent Spouse Relief.
The Conflict: Family Law vs. Federal Tax Law
When you were married and signed a joint tax return, you entered into a contract with the IRS known as Joint and Several Liability.
- The Divorce Court's View: The judge looks at your assets and debts and says, "Spouse A gets the house, and Spouse B gets the tax debt." This is a binding order between you and your ex.
- The IRS's View: The IRS was not a party to your divorce case. They didn't sign that decree. To them, you both still owe 100% of the money. If your ex-spouse refuses to pay (or goes bankrupt), the IRS will simply move to the next person on the list: You.
What Happens if Your Ex Breaks the Decree?
If your ex-spouse was ordered to pay the taxes but fails to do so, you have two separate battles to fight:
- In Family Court: You can sue your ex-spouse for "contempt of court." The judge can penalize them for violating the decree. However, this won't stop the IRS from collecting from you in the meantime.
- With the IRS: You must file for IRS Form 8857 (Innocent Spouse Relief). This is the only way to get the federal government to legally recognize that you shouldn't be held liable.
The Solution: Separation of Liability Relief
For divorced or separated individuals, the most effective tool is often the Separation of Liability Relief (Internal Revenue Code § 6015(c)).
Unlike traditional Innocent Spouse Relief, which requires you to prove you were totally "innocent" and unaware of any errors, Separation of Liability allows the IRS to literally cut the tax bill in half (or in proportion to your income).
Do You Qualify for Separation of Liability?
To use this strategy, you must meet one of the following criteria at the time you file your request:
- You are legally divorced or separated from the spouse with whom you filed the joint return.
- You are widowed.
- You have not been a member of the same household as that spouse at any time during the 12-month period ending on the date you file for relief.
How Your Divorce Decree Can Help
While the decree doesn't stop the IRS, it is still a vital piece of evidence. When you submit Form 8857, include a copy of your divorce decree. The IRS uses it as a "weighing factor" to determine if it would be unfair (inequitable) to collect from you.
If a judge already decided that your spouse earned the income and should pay the debt, the IRS is much more likely to grant you Equitable Relief.
Summary: 3 Steps to Take Today
- Stop Ignoring the Notices: Thinking "it's my ex's problem" is the fastest way to a bank levy.
- File Form 8857 Immediately: Don't wait for your ex to fail. If you know there is a debt, start separating your liability now.
- Consult a Tax Professional: Divorce-related tax issues are a specialized field. A tax attorney can help ensure your request is framed in a way that the IRS will accept.
Your divorce should be a fresh start. Don't let your ex-spouse's tax debt follow you into your new life.
