regardless of the manner in which you divorce, a compensatory allowance may be paid to a former spouse. How is it calculated ? When and to whom is it attributed ? What rhythms can be paid ? Here are all the answers to the questions that you ask.
In a divorce, the payment by one ex-spouse to the other an amount compensating for the disparity in levels of life created by the separation is feasible. This compensatory payment is possible in all procedures : mutual consent, divorce without a judge, divorce is accepted, to fault, for irretrievable marital.
compensatory benefit, how does it work ?
The beneficiary. The compensatory amount is paid to the ex-spouse who suffers the most from the divorce financially : husband or wife that he has taken the initiative procedure, or that it is in defence. The family court judge appreciates the disparity in the living conditions resulting from the divorce.
It takes into account the duration of the marriage, the incomes and respective heritages of each, their qualifications, occupational choices, such as the renunciation of a career for the sole purpose of promoting that of his spouse, and the modes of life of the family.
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The refusal of a compensatory allowance is justified if the ex-spouse, with a personal fortune, had decided not to work (Court of cassation, 1st civil chamber, 18 January 2012, n° 10-27.878).
The payment date. For the benefit to be payable, it is necessary that the divorce be recognised by a final judgment. His challenge on appeal thus prevents the payment. But if the appeal is solely on the service, the divorce becomes final.
To avoid a critical financial situation of the beneficiary, the court may provide that the spouse convicted shall pay the benefit even if he refutes the principle or the amount, even get be refunded if it is successful.
When no challenge is admissible, the benefit shall be paid without delay. Thus, the court cannot establish that it will be resolved once the child support will cease to be mandatory.
On the other hand, the spouses may decide otherwise in their agreement : in the case of a divorce by mutual consent, or without a judge, the spouses must agree with the help of their lawyers on the principle, the amount and terms of payment of the compensatory allowance.
They may waive any of the benefits, determine the duration, the capital that can be paid over a period of more than eight years. They are entitled to determine the events putting an end to the service, such as remarriage or the common-law marriage of the beneficiary or the retirement of one who has, and decide whether the indexation or not of the pension…
The only limit to the freedom of the spouses resides in the fact that the convention shall fix equitably the rights and obligations of each party, the judge may be required to control.
Different ways to the touch
The payment of a capital sum. In principle, the compensatory allowance shall be paid in capital. The law does not give any scale to fix the amount. In the absence of agreement between the spouses, it is up to the judge to determine the significance according to the needs of the recipient and the resources of those who must.
For this operation, it is not taken account of the potential harms of ex-spouses. In application of article 271 of the civil Code, the judge must analyze not only any element relating to the situation at the time of the divorce, but also the evolution of the assets of each.
The heritage, estimated or likely before their return after the liquidation of the matrimonial regime must therefore be taken into consideration. We also need to remember the next retirement of a spouse and the possible amount of his pension.
A compensatory allowance may be granted to a spouse who has earned income higher than his / her spouse at the time of the divorce but that the situation will be much less favorable when it shall cease its activity.
On the other hand, the estate which a husband has the vocation to inherit, does not enter into the calculation, as the survivor’s pension that he will receive if his spouse dies before him.
The different forms of capital. most of The time, the capital is paid in the form of a sum of money paid in one sum or periodic payments (monthly, quarterly, semi-annual very often) on a term limited to eight years.
They are then indexed according to an index stated in the judgment of divorce. Article 274 of the civil Code authorizes the award of a capital in the form of goods. Most often, it is the family home. The choice of the judge or of the parties, if they are heard on the subject, the recipient of the benefit is granted : the right of usufruct, right of use and habitation for his entire life or for a limited duration, or even the full property.
In this last case, the judge may assign a property belonging to the spouse who needs the service without its agreement. This option is, however, admitted that if the payment of a sum of money, with the provision of a security if necessary, is not sufficient (Court of cassation, 1st civil chamber, may 28, 2014, n° 13-15.760). Finally, an agreement is still required for the property the debtor has received by donation or succession.
The rente for life. A compensatory benefit takes the form of an annuity only when its recipient is unable to meet his needs because of his or her age or state of health (article 276 of the civil Code).
The judge will refuse as well to allocate a pension to a spouse that cannot meet its expenses because of his lack of qualification, or because he has to support many children at a young age.
In practice, the annuity is almost always attributed to ex-wives who are approaching retirement and have not, or not sufficiently, rights were acquired in a personal capacity. The annuity is always life, that is to say, paid during the entire lifetime of the beneficiary. Its amount and its indexation are determined according to the same criteria as for a compensatory benefit in capital.
How can it be revised ?
The benefit is in the capital. the One who must may at any time release the balance even if the judgment provided for a settlement over several years. It is not necessary to obtain the authorization of the judge for family affairs. Simply adjust the amounts remaining due. In the event of a dispute, the trace of the payment (photocopy of cheque, bank statement, or notice of transfer) will be used as evidence.
The debtor spouse also has the opportunity to ask the judge to reschedule the payments scheduled, but only within the limit of eight years (article 275, paragraph 2 of the civil Code), the court may not, in any case change the total amount of callable capital.
To do this, the spouse must allege, in his application for revision, an important change : dismissal, retirement, remarriage, involving new charges… in this respect, only the situation of the one that needs the benefit is taken into account, the improvement of the living conditions of the beneficiary (higher income, inheritance…) is never a cause of revision.
The latter, for its part, is not entitled to a rescheduling of payments or an increase in the amount. He can only ask, after the liquidation of the matrimonial property regime, the payment of the balance of the capital.
The benefit is in the form of an annuity. The life annuity may, under article 276-4 of the civil Code, to be transformed into capital, on the application of one who must. Its only constraint is to establish that it has the means to pay for a capital, and that age or state of health of his ex-spouse does not preclude this conversion.
If all these prerequisites are met, the judge is required to order restitution (Court of cassation, 1st civil chamber, 10 July 2013, n° 12-13.239). The spouse who receives the pension may also request its conversion into capital, but the payment difficulties are not a sufficient reason. In these two cases, the substitution will carry on the whole or any part of the rent.
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The debtor is also entitled to ask for it to be reduced, suspended or removed if he can prove a significant change in its resources or needs, or those of his ex-spouse. Similarly, the beneficiary may request a revision, which is common if the debtor returns to better fortune then that he had obtained a reduction of the pension, for example, if he finds a job after a layoff. It should be noted that, regardless of the hypothesis, the revision never do the rent to a higher amount than initially set.