How to Get Approved for the Affidavit of Poverty & Divorce
By Beverly Bird
American courts won’t force you to remain married if you don’t want to, even if you can’t afford your state’s filing fees for divorce and other associated expenses. However, judges usually won’t take your word that you can’t afford these costs. You’ll need documentary proof and a compelling case.
Depending on your state, the form you must request from the court clerk to have your divorce fees waived might be referred to as an affidavit of poverty or an affidavit of indigency. It might also be a petition to file your divorce documents ”informa pauperis,” or as an impoverished person. If you explain your situation to the clerk, she can give you the proper form. In all jurisdictions, when you complete the affidavit or petition, you do so under oath. This means you're swearing under penalty of perjury that the information you’re giving the court is correct. You’ll probably be asked to confirm in the affidavit that you won’t be able to purchase food or other basic life necessities if you have to pay your divorce filing fees. You might also have to attest that you’re unable to borrow the money.
In some states, the fact that you’ve signed your affidavit under oath is enough for the court. Other jurisdictions might require you to provide proof of your indigency and submit copies of this proof with your affidavit. For example, most states limit this sort of financial assistance to individuals who do not earn more than 125 percent of the federal poverty level, or those who are receiving public assistance. To qualify, you might have to provide proof of your public assistance benefits or a tax return that confirms your income. If you’re receiving unemployment compensation, Social Security or disability income, you might have to provide documentation confirming the amount of these payments.
Some states simplify the poverty application process. When you give your completed affidavit and supporting documentation to the court clerk, she'll turn it over to a judge for review. The court will notify you of the judge's decision. However, some courts may require you to appear before the judge so he can ask you some questions. He'll look for inconsistencies between your affidavit and your testimony. He'll make sure you haven’t misrepresented your income, expenses or neglected to mention someone who lives with you and contributes toward your rent.
If the court waives your divorce fees, they usually include both the filing fee for your complaint and the cost of having a sheriff serve your paperwork on your spouse to begin the divorce process. Depending on your level of indigency, some states may only partially waive these fees; you’ll have to pay the balance. Some states require you to eventually reimburse the court for these costs. For example, if you live in Ohio, the court expects repayment at the time your divorce is granted, either from you or your spouse as part of the terms of your decree.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.