The U.S. Supreme Court’s Turner v. Rogers decision plausibly requires the equivalent of a simple, explicit determination of present ability-to-pay in the case of an unrepresented child-support debtor facing incarceration via a civil-contempt order. Individual jurisdictions that do not provide indigent child-support debtors with counsel must implement such due-process safeguards. Florida’s statute that sets out the legal determination of civil indigent status provides a good example of how the Turner v. Rogers safeguards could be implemented.
Under Florida Statutes, Section 57.082, a person applying for a state-provided attorney in a civil case is required to file a form that includes basic financial information. The clerk of the court reviews that form using two simple rules:
- An applicant, including an applicant who is a minor or an adult tax-dependent person, is indigent if the applicant’s income is equal to or below 200 percent of the then-current federal poverty guidelines prescribed for the size of the household of the applicant by the United States Department of Health and Human Services.
- There is a presumption that the applicant is not indigent if the applicant owns, or has equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property having a net equity value of $2,500 or more, excluding the value of the person’s homestead and one vehicle having a net value not exceeding $5,000.
Using these rules, the clerk decides if the applicant is indigent or not indigent. The Florida statute explicitly requires a simple determination of ability-to-pay:
The duty of the clerk in determining whether an applicant is indigent is limited to receiving the application and comparing the information provided in the application to the criteria prescribed in this subsection. The determination of indigent status is a ministerial act of the clerk and may not be based on further investigation or the exercise of independent judgment by the clerk.
The applicant is allowed to request judicial review of the clerk’s decision if the clerk finds the applicant not indigent. If the clerk determines that the applicant is indigent, the applicant receives counsel under a monthly payment plan that requires payments of no more than 2% of the applicant’s average monthly income.
The Florida statute provides a model for processing show-cause orders for considering incarcerating unrepresented child-support debtors. If the child-support debtor does not have counsel, he or she should be given the opportunity to have a Turner ability-to-pay determination. The Turner ability-to-pay determination would follow from the Florida model, with the child-support debt due netted from the applicant’s income. If the Florida model found the applicant indigent, then the applicant would not be eligible to be incarcerated for child-support debt.
Incarcerating indigent child-support debtors is inhumane, greatly worsens the debtors’ ability to earn income, and has large public costs, financial and social. Incarcerating child-support debtors without due process safeguards is also illegal. If the Turner v. Rogers decision is reasonably implemented, it is an important step toward justice under law.
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