It depends on whether or not he is going to have income tax due on any of these prior year returns. If he is going to owe income tax and you decide to file as married filing jointly, then you would need to file an injured spouse claim to protect your portion of the joint refund. If you file this claim and he doesnt owe back taxes then it will delay your refund.
There are specific requirements that need to be met in order to qualify as an injured spouse. In order to qualify:
- You need to file married filing jointly
- You cant have any legal responsibility to pay your spouse's debt.
- You would need to have earned income and/or taxable income that entitles you to a tax refund unless you or your children are eligible for and claiming the American Opportunity tax credit. The American Opportunity tax credit is a partially refundable tax credit that you can qualify for if you are pursuing your first bachelor's degree and meet the requirements to claim the credit. Please refer to the questions on page 1 of Form 8379 for more information. https://www.irs.gov/pub/irs-pdf/f8379.pdf
- The debt has to be subject to collection through the income tax return.
Please refer to page 1 of the IRS instructions for Form 8379, under the heading, "are you an injured spouse?" to review these requirements. https://www.irs.gov/pub/irs-pdf/i8379.pdf
With respect to filing status, married filing jointly is usually the best option for a married couple because you get the lowest tax rates, highest standard deduction, and the best tax benefits. When you file married filing separately some benefits are eliminated and others are reduced and this can have a significant effect on your tax return. Please refer to pages 7-8 of Pub 501 under the headings, "married filing separately" and "special rules" for more information. https://www.irs.gov/pub/irs-pdf/p501.pdf
Please refer to the following FAQ for information on how you can compare your filing status options. https://ttlc.intuit.com/replies/4775330.