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planty555
New Member

injured spouse for child tax refund

My husband filed married filed jointly with me and claimed our two children. He receives the child tax credit for our kids but he also owes past debt that will be offset. I am on disability and don't work. Can I still file as an injured spouse to get part of the child tax credit refund for my kids?

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3 Replies
Vanessa A
Employee Tax Expert

injured spouse for child tax refund

It depends on which state you live in.  If you live in a community property state, then yes, you may be able to file an injured spouse claim as the IRS will divide the refund based on state law.  This could possibly be 50/50, but it depends on the state.

 

If you live in a non-community property state, then No, it would not do any good to file the injured spouse form as you do not have a refund that you are due.  Since you have no taxable income, you would not be able to claim the children for a tax credit and you would not be eligible for any other type of refund.  

 

Taxpayer Advocate Services; Injured Spouse

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planty555
New Member

injured spouse for child tax refund

I live in CA

Vanessa A
Employee Tax Expert

injured spouse for child tax refund

California is a community property state, but their law provides that his debt is your debt and any income that is community property income, can be used to settle either of your debt.  This means, filing an injured spouse form in CA, will not result in you getting half of the refund. 

 

 "California does not have an injured spouse law. A tax refund issued to both spouses who file a joint return is community property. Because the refund is community property, it can be used to pay the debts of either spouse – whether owed before or during the marriage." Tax debt relief for spouse

 

 

"California law provides that a creditor may reach all of the community property to satisfy a debt incurred by a spouse before or during marriage. See Cal. Fam. Code section 910(a) (2003). A creditor may also reach all of the liable spouse’s separate property to satisfy a debt incurred by the liable spouse; however, a creditor may not reach any of the non-liable spouse’s separate property. See Cal. Fam. Code section 913 (2003)." Internal Revenue Bulletin: 2004-30

 

 

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