When Divorce Doesn't End IRS Liability: A Guide for Family Law Attorneys

One of the most disruptive surprises a divorce client can face is an IRS notice arriving months — or even years — after the divorce is finalized, holding them responsible for a tax debt that traces back to something their former spouse did on a joint return. For family law attorneys, understanding how Innocent Spouse Relief works can make a meaningful difference for your clients. Knowing when to bring in a tax resolution specialist can protect them from missing a deadline they didn't know existed.

The Core Problem: Joint and Several Liability Survives Divorce

Under IRC §6013, married couples who file jointly take on joint and several liability for the entire tax shown on the return — including any additional tax, penalties, and interest that arise later. As IRM 25.15.1 states directly, both spouses are responsible for the accuracy and completeness of the return and for payment of any tax liability arising from it, regardless of what happens to the marriage afterward.

That last clause is what creates the problem. A divorce decree can allocate tax liability between the parties — but it does not bind the IRS. The IRS is not a party to the divorce proceeding, and it can pursue either spouse for the full balance regardless of what a settlement agreement says. Your client may have signed a return they didn't fully understand, or one that was inaccurate because of something their spouse concealed. The divorce is done. The IRS problem is not.

Three Forms of Relief Under IRC §6015

Congress addressed this directly in the IRS Restructuring and Reform Act of 1998, enacting IRC §6015. A spouse may request relief from joint and several liability in three ways. All three are requested on Form 8857, Request for Innocent Spouse Relief — or a signed written statement containing equivalent information per IRM 25.15.8. The IRS automatically considers all three forms and applies whichever the requesting spouse qualifies for; the client doesn't need to identify which type they're seeking.

Traditional Innocent Spouse Relief — IRC §6015(b)

This is the broadest form of relief and is available to any joint filer, regardless of marital status. To qualify, the requesting spouse must show: there was an understatement of tax on the return; the understatement was attributable to erroneous items of the other spouse; the requesting spouse did not know and had no reason to know of the understatement at the time of signing; and holding the requesting spouse liable would be inequitable given all facts and circumstances.

Knowledge is the pivotal element. Actual or constructive knowledge of the erroneous item will disqualify the requesting spouse from §6015(b) relief.

Separation of Liability — IRC §6015(c)

This form is available only to spouses who are divorced, legally separated, or who have not been members of the same household at any point during the 12-month period prior to the request. Rather than eliminating liability entirely, §6015(c) allocates the understatement of tax between the two spouses as though they had filed separate returns. This is particularly useful when some portion of the understatement was legitimately attributable to the requesting spouse — they can limit their exposure to their proportionate share rather than the full joint balance. Again, actual knowledge of the erroneous items disqualifies the requesting spouse.

Equitable Relief — IRC §6015(f)

If a spouse doesn't qualify under either §6015(b) or §6015(c), equitable relief is available when it would be inequitable to hold the requesting spouse liable given all the facts and circumstances. This is the catch-all provision under Rev. Proc. 2013-34 — and critically, it is the only form of relief available when the issue involves an underpayment rather than an understatement. In other words, if the return was accurate but the tax due simply wasn't paid, §6015(f) is the only path to relief.

The 2-Year Deadline: The Most Common Missed Opportunity

Under IRM 25.15.1, a request for relief must generally be filed within two years of the first IRS collection activity directed against the requesting spouse. This is not the date of the divorce. It is not the date of the original IRS notice. It is tied to the date of collection activity — and that can be easy to overlook when a client is consumed by the divorce process itself.

This means a family law client who receives an IRS notice during or immediately after divorce proceedings may have a running clock that isn't obvious from the face of the notice. Missing the window can permanently eliminate relief that would otherwise have been available.

One note: courts have challenged the two-year limitation as applied specifically to §6015(f) equitable relief claims, and the IRS has acknowledged that the two-year rule does not bar equitable relief requests under §6015(f). Even so, filing promptly is always advisable, regardless of which form of relief applies.

The Domestic Abuse Exception: Where Family Law and Tax Law Intersect Most Directly

Cases involving domestic abuse require a more careful and layered analysis than a standard innocent spouse claim — and they represent the situation where collaboration between a family law attorney and a tax resolution specialist matters most.

The duress argument: stronger than §6015

If your client was coerced into signing a joint return, or signed under conditions that amounted to duress, the joint filing election itself may be invalid under IRM 25.15.1.2.3. The IRS standard requires showing that the taxpayer was unable to resist demands to sign and would not have signed but for that constraint, per Stanley v. Commissioner, 45 T.C. 555 (1966). If the joint election is invalid, the IRS treats the return as married filing separately — which eliminates joint and several liability entirely rather than merely relieving it. That is a substantially stronger outcome than anything available under §6015, and it's worth evaluating before defaulting to a Form 8857.

Similarly, if the client's signature was forged and there was no tacit consent to file jointly, the joint election is invalid on that basis as well under IRM 25.15.1.2.4. Building that factual record — and coordinating it with what is already being developed in the divorce proceeding — is where early involvement of a tax resolution specialist pays off.

The abuse exception to the knowledge standard

Even where the joint election is valid, the IRM carves out an explicit exception to the knowledge requirements under both §6015(b) and §6015(c). Under IRM 25.15.3.7.3 and IRM 25.15.3.8.2.1, if a requesting spouse establishes that prior abuse caused them not to challenge items on the return out of fear of retaliation, the actual and constructive knowledge standards do not apply. This exception must be developed factually — it is not self-executing. It requires presenting the history of abuse to the IRS in the context of the relief request, along with supporting documentation.

The declarations, financial disclosures, and protective orders generated in your divorce proceeding are directly relevant to this showing. A tax resolution specialist working alongside you can identify what to preserve and how to present it in the IRS proceeding.

Protecting the client during the IRS process

Under IRM 25.15.3.4.1, the IRS is required to notify the non-requesting spouse when a Form 8857 is filed. In abuse situations, this creates obvious risks. The IRM addresses this directly: the IRS is prohibited from disclosing the requesting spouse's new address, location, phone number, employment, or income to the non-requesting spouse. Ensuring the Form 8857 and all subsequent correspondence are handled in a way that does not inadvertently expose the client's location is something I manage carefully in these cases.

Equitable relief as a backstop

Rev. Proc. 2013-34, which governs §6015(f) equitable relief, explicitly treats abuse and financial control as significant factors in the analysis. Under IRM 25.15.3.9.4.1, the IRS is directed to consider whether the non-requesting spouse abused the requesting spouse or maintained financial control by restricting access to financial information — and that history directly mitigates what would otherwise weigh against relief, including knowledge factors. Even where §6015(b) or §6015(c) relief is unavailable, the equitable relief path remains open, and abuse history weighs heavily in the requesting spouse's favor.

The practical takeaway for family law attorneys

When abuse is present, the IRS and family law matters are not parallel proceedings — they are overlapping ones. What gets documented in your case affects what is available in the IRS proceeding, and the timing of the IRS filing can affect your client's exposure during the divorce. Bringing in a tax resolution specialist early, while the divorce is still active, allows both matters to be handled in a coordinated way rather than sequentially.

What the Ex-Spouse Gets to Know

One aspect worth preparing clients for: under IRM 25.15.3, the IRS is required to notify the non-requesting spouse of the innocent spouse claim and provide them an opportunity to participate. The non-requesting spouse can provide information and has their own appeal rights. In contentious divorces, the innocent spouse process can become another arena of conflict — particularly if the ex has an incentive to establish that the requesting spouse knew about the erroneous items.

When to Refer

Innocent spouse cases are fact-intensive and procedurally specific. They intersect with your divorce proceeding in timing, documentation, and sometimes in ways that affect what the settlement agreement should say. I work directly, handling the IRS side, while you stay focused on the family law matter.

If you have a client who:

• Received an IRS notice tied to a joint return filed during the marriage
• Is divorcing a spouse with unreported income, unfiled returns, or unpaid taxes
• Signed a return they believe was inaccurate due to the other spouse's actions
• Is facing IRS collection activity while the divorce is still pending

...it is worth a conversation before a deadline passes.

You can learn more about how I work with professional referral sources on the For Professionals page, or reach out directly through the Contact page. For context on what an IRS collection situation looks like from the client's perspective, the Tax Debt Relief and IRS Situation Review & Options Analysis pages offer a useful overview.