My husband owes back child support, does work, but we live in CA. Can I file an injured spouse?

My husband owes back child support for a previous relationship. He does have some income and last year we had the refund partially garnished but did receive some refund.

The back child support amount has grown this year so I'm concerned it will take the entire refund and I don't want to lose my portion that has been withheld from my paychecks through the year.

I file with my name first on the return (not sure if that matters). We live in CA (community property state) and when I tried to answer the questions, I'm not really sure of the questions:

1. There is an understated tax on the return(s) that is due to erroneous items of the person with whom I filed the joint return.
2. I can show that when I signed the return(s) I did not know and had no reason to know the understated tax existed (or the extent to which the understated tax existed).
3. Taking into account all the facts and circumstances, it would be unfair to hold me liable for the understated tax.
4. None of the above

Is back child support considered "understated tax"?


    If you are married to an individual that has an outstanding child support order, that was established before your marriage that is currently in arrears, and you are not responsible for because the child is not yours... Child support enforcement will take the entire refund for both state and federal taxes, UNLESS you fill out form 8379.  With the state being a community property state all assets are split between the two parties 50/50.  So, by filing Injured Spouse you will get half the return, regardless of who worked more hours.  But it does NOT make you liable for your spouse's child support debt.  You can file your return electronically even with the injured spouse form 8379.  It does not have to be mailed in unless you are doing an AMENDED return for a return you have previously filed for the current year or for a previous year.  It can take up to 6 to 8 months to see the return sent back to you though, so turbo Tax will usually require you to pay for the filing separately.  You can request the fee to be paid from your federal return, but they will only allow this for so much time and if they haven't received payment in that time frame, they will bill you (usually to the credit or debit card on file) for the filing me.  You will get your state return a little faster depending on which state you file from.  I have filed this way for many years and we also live in a community property state.  However, we have also lived in non-community property states as well, and that is a little bit trickier as they will base the return you get back on your individual income rather than your joint income.  I hope this helps!

      You can but CA is a community property state.  Injured spouse benefits are of very little value in a community property state.
      • .
      • So (not using real figures here) but say I made $90K/year, and he made $46K/year. Community property states will view it as we each made $68K and I'm assuming that the back child support portion would be taken based on that figure vs. what he actually makes. (I just don't want to see all of our refund disappear for this -- I'm okay with a portion of it being taken to satisfy the back amount.)

        And do you know if back child support considered "understated tax"? In terms of answering those questions?

      • Good luck!  I filed injured spouse last year and they denied it and my husbands ex wife got our entire refund.  I live in CA too.
      • Ugh. Thanks for your input though...I guess I can set my expectations low and only be surprised if I get anything. :(
      • Sorry I'm still dealing with it too.  If you know you will get a refund again next year and don't want any of your income given to her you can change your W4 so you have less taxes taken out which means less of a refund or none depending on your income, etc.  Your paychecks would be more every month instead of the lump sum refund.  Good luck!
      • I live in TX and I filed for Injured Spouse because my Husband owes back child support and they gave his Ex half of my check, It was explained to me by IRS that half of the return will go to her every year he is behind on child support!
      • Child support is NOT an understated tax.  An understated tax refers to the difference between the total amount of tax that should have been shown on your return and the amount of tax that was actually shown on your return. For example, you reported total tax on your 2009 return of $2,500. IRS determined in an audit of your 2009 return that the total tax should be $3,000. You have a $500 understatement of tax...THIS IS USED IN THE PROCESS OF INNOCENT SPOUSE NOT INJURED SPOUSE.  They are two different things.  Innocent Spouse Relief is generally, when a joint tax return is filed, each spouse is equally liable for all the tax, penalties, and interest for the particular joint tax year, however innocent spouse is a measure of relief built into the tax code that allows a person, if eligible, to avoid paying his or her spouse's tax if it was reported incorrectly.  

        So, the section of the questionnaire you are looking at is for innocent spouse...injured spouse is the next one.  So, choose none of the above and it should take you to the injured spouse questions next.  Hope that helps!
      I've completed this form through Turbo Tax for a few years and received my half of our refund, while the other half was sent to the state for back child support.  We're in California.
        My ex and his current wife tried to file injured spouse 3 years in a row and I got the entire refund check all 3 years. Now they just quit filing completely. I think the higher the amount owed, the more likely it is the whole thing will be taken and the less likely the injured spouse thing will work. Just my 2 cents.
        • Thank you for your input. I do have to say this is a pretty confusing issue (and how it's dealt with too). :)
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