The rupture of the couple, consensual or not, is not a trivial matter. It is necessary to think at all. To avoid a loss of time and money, provisions must be anticipated in four main areas.

With an average of 230 000 to 240 000 instances every year, divorce cases clog the courts. Despite the development of legal intended to accelerate the regulation, the judges for family affairs say they are overwhelmed and it is not uncommon for couples waiting almost a year to finally be able to leave each of their side.

According to figures from the ministry of Justice, the ruptures take place by mutual consent in 55 % of cases, under the procedure for divorce accepted in 24 %, to be at fault in 10 % and due to an alteration of the marital bond for the rest.

But regardless of the terms of the separation, the problems to solve are many. Rather than thinking that everything will be settled with the judge and the lawyers, it is better to anticipate the difficulties and solutions to overcome them.

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Because even in case of divorce, “pacific”, all is not rosy. It is necessary to determine the fate of the children, fix pensions and benefits, divide the heritage, and weigh the tax consequences of the rupture.

Débroussaillons all this “obstacle course”.

children

This is a major subject of contention. How to exercise parental authority ? Who will have custody of the children ? What will be the rights and obligations of the one who does not have children at home ? Has every question his answer.

The two parents keep, subject to certain exceptions, the joint parental responsibility over their offspring. There are, in fact, a distribution of roles between them, still endorsed by the court in case of conflict. The one in which the children live makes arrangements for everyday life : permission to leave the, choice of cultural and sporting activities… in making important decisions such as the choice of schooling, religious education, medical treatment, heavy, the two parents need to work together.

This mode of operation is based on the residence of the children. The equation is simple. The judge may set the dwelling usual for one of the parents, or decide for a residence alternately at the domicile of each of the parents.

The judges, a priori, to validate the choice of the parents if they agreed. Except for requests for alternation, who are the great current trend. They do hold that in 17% of cases. The joint custody requires, in effect, that the ex-spouses get along well and are at a little distance from one another so as not to disrupt the daily life of the children. In case of doubt on the relevance of this mode of custody, the judge may decide to alternating temporary, leaves to sustain it thereafter.

As to the periodicity of the reception of the children, it is very variable : a week, a fortnight, a month or even unequal.

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The habitual residence in one of the parents remains the most widely used. This is the option chosen by the judges, if the housing respective are too far apart, if one of the parents is not in a position to host correctly their children (housing that is too small, work life too dominant), or even if these latter, by reason of their youth, need a stable life.

In 75 % of cases, the residence of the children is fixed in the mother. The courts give the parent who does not live with them a right of visit and accommodation. Generally, it has two or three weekends a month, half of the small and large holiday, and possibly a day in the week, as the Wednesday.

Remains to be the maintenance payable by the one who does not have custody of his children. It is due on a monthly basis, twelve months a year, even during the holidays are placed by the debtor with his children.

there is Nothing to prevent future ex-spouses to agree to fix the amount. But most often, there is a dispute and it is the judge who decides. It will review : the standard of living of the family prior to the divorce, the number and age of children (the more they are aged, the more they have of needs), their education, their leisure, their health status, the extent of the right of visit of the future debtor.

Each parent must give the judge a summary of all income (wages, rents, family allowances,…) and all of its expenses (taxes, loan repayments, childcare…).

The judge uses an indicative schedule has been prepared by the ministry of Justice (Vos-droits.justice.gouv.fr, Family section and then Pensions and maintenance obligations). It is a good tool of reference and negotiation.

compensatory allowance : the husband the most disadvantaged by the divorce is entitled to the payment of a capital

In case of disparity between levels of living following the divorce, the payment of a compensatory allowance by the better off to the less fortunate is often decided by the judge. To assess the situation, the latter will take into account the duration of the marriage, the circumstances of the failure, the income and wealth of the respective spouses, the professional qualifications of each, the chances of finding a job for the one who has sacrificed his career for the benefit of the other, the train of life before and after divorce and all the personal items that can have an influence.

for example, a spouse who had a fortune personnelle and refused to work denied the right to a benefit. Another who, after twenty-four years of marriage, had left in sight of the marital home and no longer gave any new, has suffered the same setbacks, the judge considered that his behavior is particularly unfair would not allow him to claim the financial compensation.

so it is Best to find a compromise, which is mandatory in the case of divorce by mutual consent. Otherwise, he must expect a battle of scavengers by counsel interposed.

Whatever the fate that will be reserved, the compensatory benefit is paid in capital in 84% of cases. Most of the time, it is for the debtor spouse to pay a sum of money.

The capital can be paid all at once or according to a precise timetable, the duration of which may not exceed eight years. But the benefit can also take the form of abandonment of a well, for example the old housing joint torque left to the one who has the least resources and have custody of the children.

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The beneficiary may be granted a simple right of use and habitation, usufruct for a limited period of time or until his death or, much more rarely, of the full ownership. Even if you’re both okay, do not insist to apply for a compensatory benefit in the form of a monthly annuity. According to article 276 of the civil Code, you may not get that if the beneficiary cannot meet his needs because of his or her age or state of health.

In practice, the judges reserve the benefit in pension to the ex-spouses who are approaching retirement and have not acquired sufficient rights in a personal capacity. The combination of an annuity and a lump sum is allowed but is rare.

As to the amount of the provision, as it is a function of your personal situation, it is extremely variable. According to statistics from the ministry of Justice, ancient as they date back to 2004, 50 % of the benefits in money reach 21500 euros and 10 % exceeds 80 000 euros. Taking into account inflation since that date, you will get an idea of what you will pay or receive.

The key assets in common : the family housing

when the spouses have common property, or hold property in joint ownership, the problem arises of the sharing of their assets. The divorce resulting in the liquidation of the matrimonial regime, the clashes are common because it is necessary to list the assets in common or undivided, to make accounts and then share them. It is a delicate and complex, and you can avoid the costs of lawyers and notaries.

note that since the 1st of January, the procedures are less time consuming since you can now seek the division of property from the divorce proceedings, which allows the judge to decide before the final judgment. This anticipation until then was possible only in the context of a mutual consent.

The dispute is the most difficult, because it concerns all couples, door on the family home. During the procedure, the judge decides the one of the two spouses, which will continue to occupy the home until the divorce is final, the beneficiary of this right was always the one who lives with the children. The judge will specify at the same time if the spouse who retains the use of the property should or should not pay compensation to the other party. Where appropriate, it shall designate the one who will assume the repayment of loans taken for the purchase. Even if it is one’s own good, its owner will not have the right to sell it without the consent of the spouse. If they were tenants, both spouses remain liable jointly and severally for the rent and no termination of the lease is not possible without the signature of each. Again, the two parties have any interest in finding a common ground, the judge endorsing their proposals.

After the divorce, several solutions are possible, of which you must weigh carefully the consequences. For a rented home, it is simple : the lease is assigned permanently to one of the spouses, the other was to give her leave to the landlord.

For the dwelling in which you are the owner, it is necessary to distinguish according to whether it belongs to one spouse or to both. In the first situation, the ex-spouse retains ownership of his property but the other spouse may request to retain the enjoyment. It may be granted, as we have mentioned above, as a compensatory allowance. A lease may also be granted. In this case, the owner’s interest to request a fixed term of the lease, for example up to the majority of the younger children.

In the situation of a common good, if you divorce by mutual consent, you must agree before you meet the judge. In other procedures, there is often conflict between the spouses and it is the judge that decides.

If the dispute proves impossible, it may decide that the spouses will not be allowed to claim their share of the family home for a period of five years, renewable until the majority of the younger children.

Everything is frozen, the property is unmarketable because it is owned by two joint owners in conflict, but the spouse who benefits from the enjoyment of the dwelling is insured to keep it several years. It is better to avoid getting to that point because this decision does not satisfy any of the parties and gives rise to incessant disputes.

You must, therefore, focus on two tracks : the acceptance of a preferential allocation, or you resolve to sell. There are attribution where one spouse receives full ownership of the housing when the division of common property. The successful tenderer shall pay to his ex-spouse, for financial compensation, the balance in cash, corresponding to the share of property that he give up, or give up other assets so that the share is balanced. The spouse who claims this award must reside in the dwelling at the time the magistrate will rule, unless it has been forced to relocate by the judge’s decision.

often, the housing forms the bulk of the joint assets and no spouse is able to pay a one-off payment to the other to keep the property. It is then necessary to sell. Better not let it drag out and agree on a price. The faster the property will be sold, the more quickly will take place the sharing of the proceeds of the sale, which often has the effect of pacifying the situation !

The tax consequences of divorce

divorce has many tax implications, as soon as the procedure is started. The year of the separation, two income statements, one for each spouse must be subscribed for, each stating its own resources and its share of joint income or undivided. The family situation is assessed at 31 December. Thus, the family quotient and tax benefits related to the child are attributed to the one who has the care to this date, even if in the first months of the year, the spouses were still living together. After the divorce, the principle of assignment to a parent will apply if sole custody is entrusted to him. It must add to its taxable income the maintenance of the children.

It will do the same for the compensatory allowance provided in the form of an annuity or a paid-up capital over a period of more than twelve months. As to the ex-spouse debtor, it shall deduct from its income the two installments. On the other hand, if the capital payment is guaranteed for twelve months at the most, there is no deduction from income but a tax reduction equal to 25 % of a ceiling of 30 500€, i.e. a maximum advantage of 7 625 euros. The beneficiary, meanwhile, has nothing to declare. In the case of a residence alternate, the parents share half of the family quotient and the ceiling of the benefit. In contrast, the adult children may not be attached to a single home.

We find these principles to the family allowance (allocation to the single parent who has custody, or sharing in the case of alternating). But for other social security benefits, the parents must decide by mutual agreement who will collect. Finally, don’t forget the cost of the divorce. The fees of lawyers and notaries, taxes (the law of sharing of 2.50 %, for example) do not give entitlement to any tax benefit. All the knowledge and prepare the “plan of financing” for your separation.

spousal support, compensatory allowance : a practical case to understand

Mr. and mrs. T. divorce by mutual consent. They were, respectively, 40 and 36 years and two children of 10 years and 8 years. Madame has custody of the children. Gentleman has a net income of eur 60 000, madam, of 25000 euros.

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support. It is caused by monsieur, madame, for the care of children. We take into account the monthly income of mr. (5 000 euros per month) and the right of visit and accommodation said (a classic every second weekend and half school holidays). To determine this, one uses the indicative scale, established by the ministry of Justice and revised in June : currently, 516 euros per child, a monthly payment of 1032 euros for two children, payable until the end of their studies, uprated every year according to the evolution of the consumer price index.

compensatory benefit. It is to be paid by mr. to ms. in order to compensate for their disparity of standard of living. The judge refers to the average amounts laid down by the case law, taking into account the fact that madame has income lower than half those of mr and has after division of property as a heritage of 350 000 euros, while that of mr is 600 000 euro. We take into consideration the expenses of mr. (income tax, pension for children, loans) and those of madame (taxes, rents). As in 84 % of divorces, the benefit will be paid in capital and not in pension. It is set at 65,000 euros versables in 26 monthly instalments, is € 2,500, in addition to the maintenance of 1032 euros.