Common use of Ability to Pay Clause in Contracts

Ability to Pay. To determine ability to pay, the Court shall use the Affidavit of Indigence (Form Four) and inquire on the topics set forth in the attached Compliance Hearing Ability to Pay Inquiry and Determinations (Form Five), as well as any other factors considered by the Court to be relevant. Any determinations that the Court makes regarding ability to pay or willfulness of nonpayment shall be guided by the Bench Card, and applicable law. If a defendant is represented, the Court shall provide the defendant with adequate time to privately confer with defense counsel on the issue of ability to pay prior to the Court’s ability-to-pay inquiry. During the hearing, the Court shall carefully consider the defendant’s responses to each question before making any determination regarding ability to pay and whether nonpayment was willful. If a defendant is unable to provide the information requested by the Court during an ability-to-pay inquiry, the Court shall consider allowing the defendant (and, if applicable, counsel) additional time to gather information to respond to the Court’s questions. The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. There shall be a rebuttable presumption that a person is unable to pay LFOs upon a finding of at least one of the following factors:

Ability to Pay. To determine ability to pay, the Court shall use the Affidavit of Indigence (Form FourThree) and inquire on the topics set forth in the attached Compliance Hearing Ability LFO Inability to Pay Inquiry and Determinations Guide (Form FiveFour), as well as any other factors considered by the Court to be relevant. Any determinations that the Court makes regarding ability to pay or willfulness of nonpayment shall be guided by the Bench Card, and applicable law. If a defendant is represented, the Court shall provide the defendant with adequate time to privately confer with defense counsel on the issue of ability to pay prior to the Court’s ability-to-pay inquiry. During the hearing, the Court shall carefully consider the defendant’s responses to each question before making any determination regarding ability to pay and whether nonpayment was willful. If a defendant is unable to provide the information requested by the Court during an ability-to-pay inquiry, the Court shall consider allowing the defendant (and, if applicable, counsel) additional time to gather information to respond to the Court’s questions. The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. There shall be a rebuttable presumption that a person is unable to pay LFOs upon a finding of at least one of the following factors: