Module 3. Ability to Pay: Considerations

How do you determine how much someone can pay?

Ability to pay assessments are a dialogue between defendants and the court about their current financial situation.

The 2024 CCJ/COSCA Fines and Fees Task Force 2.0, Fines and Fees Bench Card provides a list of non-exhaustive factors that the court should consider when making ability to pay determinations:

  • Income, including whether income is at or below 125% of the Federal Poverty Guidelines (FPG);
  • Receipt of needs-based, means-tested public assistance, including, but not limited to, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), or veterans’ disability benefits;
  • Financial resources and assets;
  • Basic living expenses, including, but not limited to, food, rent/mortgage, utilities, medical expenses, transportation, child support, student loan payments, credit card and medical debt;
  • Costs for dependents;
  • Whether the person is homeless, incarcerated, or resides in a mental health facility;
  • The person’s efforts to acquire additional resources, including any permanent or temporary limitations to secure paid work due to disability, mental or physical health, homelessness, incarceration, lack of transportation, or driving privileges;
  • Other legal financial obligations owed to the court or other courts;
  • Whether a legal financial obligation payment would result in manifest hardship to the person or his/her dependents; and
  • Any other circumstances that may bear on the person’s ability to pay.

As noted, your jurisdiction may have a list of required factors for consideration in ability to pay assessments. Further, defendants should be provided a meaningful opportunity to disclose circumstances that would impact any assessment outcome that may not be listed.

Examples:

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