What if the clerk does not approve my Affidavit of Indigency right away?

Produced by Merrimack Valley North-Shore Legal Services, Inc.
Reviewed September 2013

The Law

Massachusetts state law requires that if the Affidavit of Indigency appears regular and complete on its face, and indicates that you are eligible, the affidavit should be granted. See General Law Chapter 261 section 27(C)(2).

The Supreme Judicial Court’s Instructions

The Massachusetts Supreme Judicial Court issued instructions to court clerks that say:

If you file an Affidavit of Indigency:

  • under Category A or B, and complete it correctly, the clerk should not ask you for more information or refer you to a judge.
  • under Category C, the clerk can approve it. The clerk only needs to send you to a judge if they have a serious question about whether you meet the standard under Category C.

You do not have to fill out a Supplement to the Affidavit form if you check Category A or B. You only have to complete the Supplement if you check Box C.

The clerk must file and date your court documents when you give them to the clerk.  If the clerk has a question and you need to see a judge to get the affidavit approved, the clerk must still file your papers on the day you give them to the clerk. The instructions say, “all papers offered for filing must be dated and accepted when they are first presented, and must be processed without delay.” “No papers may be rejected because the filer has not yet obtained waiver of the filing fee.”

See the the Supreme Judicial Court's memo and Instructions to Courts.

Produced by Merrimack Valley North-Shore Legal Services, Inc.
Reviewed August 2013

Your Rights

The clerk can do 2 things:

  1. approve your Affidavit of Indigency, or
  2. send it to a judge to decide.

The clerk should not ask you for more financial information or documents when you file your Affidavit of Indigency if:

  • You checked Category A or B,
  • You filled out sections II and III of the form, and
  • You signed and dated the form.

The law says that the clerk must approve your Affidavit of Indigency immediately if it looks "regular and complete."

Also, Chief Justice Marshall of the Supreme Judicial Court wrote a memo that tells clerks to follow the law.

Sometimes

Sometimes a clerk will tell you they need more financial information or documents before they can approve your Affidavit of Indigency. For example:

  • If you check Category A, the clerk might ask you for documentation that shows that you get one of these benefits.
  • If you check Category B, the clerk might ask for a paystub, or that you fill out more financial forms.

What can I do if the clerk asks me for more information?

If you check Category A or B, and complete the rest of the form correctly, and the clerk asks you for more information or documents, remind the clerk of the law and the Supreme Judicial Court’s instructions.

If the clerk sends your Affidavit of Indigency to the judge to decide, you can still file your court papers. You do not have to pay the fees when you file. But if your Affidavit of Indigency is not correct, and your income is too high to have your fees waived, you may have to pay them later.

If you are having a problem filing your Affidavit of Indigency you can call your local legal aid office for help.

Find Legal Aid

You may be able to get free legal help from your local legal aid program. Or email a question about your own legal problem to a lawyer.

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