I live in Wisconsin, a community property state. My wife and I filed a joint tax return. I owe child support. She filed for injured spouse. She did not work last year, but receives social security. I did work. Will she get 50% of the federal refund as she filed injured spouse? The debt is mine, not hers. We have been married 4 years, and the child support debt is not owed to my wife, but a previous wife.

ANSWER

The BIDaWIZ Team's Answer:

Generally speaking, when one spouse files for injured spouse via form 8379, the IRS treats both spouses as if they filed separately. They consider the total refund of both parties and apportion them based on their respective income and other items. If her only income was social security, she generally would not be entitled to 50% of the the refund. However, there is an exception to this rule as it applies to community property states. Specifically, if items are community property property, each spouse is considered to be the recipient of half of the item. In an injured spouse allocation, items of community property income should be allocated 50% to each spouse. Thus, the same would apply to a tax refund due. We would expect that 50% of the refund would be allocated to your spouse; separately considered property wouldn't be included in this concept. You can reference this Internal Revenue Memo (IRM) 02-15-2005.

Another point to note is that no portion of the injured spouse's share of the community property over-payment can be reached for a IRC 6402 debt not relating to federal taxes, such as child support, state income taxes or other non-tax federal obligations (under IRC sections 6402(c), (d) or (e)).

References: IRM 02-15-2005
State: Wisconsin