Indigency Law & Legal Definition

Indigency, or lack of ability to pay, is a legal reason for having certain required fees waived, being declared eligible for free services, or apppointment of legal counsel. The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense.” Therefore, people who cannot afford to pay for a lawyer may have one appointed for them. There are also constitutional due process requirements applicable to an indigent person's access to services and processes in the legal system. Often, there is a statutory requirement that an affidavit of indigency be submitted in order to have a legally required fee waived, such as a court filing fee.

For example, an indigent plaintiff in a divorce action may require the appropriate public officials to effect service of process by publication without prepayment by the indigent plaintiff of the costs of publication, that access is generally limited to the essential exercise of fundamental constitutional rights, e.g., rights affecting the marital relationship. However, a court may not be required to waive costs in a name change filing, since it is not a fundamental right.

Indigency refers to persons who have a significant lack of income. Indigency is governed by various federal, state, local, and administrative laws and rules, which vary. It is often defined by 1) the receipt of certain public assistance payments, 2) income, after taxes, which does not exceed 125% of the current Federal Poverty Guideline, or 3) that a person cannot pay required fees or costs without depriving themself or those who are dependent on them of the necessities of life, including food, shelter and clothing.

Due process rights require the indigent to have access to the justice system, therefore, public lawyers are appointed for those who can't afford a lawyer and are possibly faced with incarceration. Many filing fees required by the justice system may be waived by submitting an affidavit of indigency, or petition to proceed informa pauperis. There are also numerous state and federal government benefits available to those who have a maximum income level at or below a defined poverty line.