Compensatory benefit 

Divorce may create a significant change in standard of living. The compensatory benefit is the payment of an amount intended to compensate this situation.

Its amount is determined according to the needs of the spouse to whom it is paid and the resources of the other.

It may be due during a divorce by mutual consent or a judicial divorce.

The judge may refuse to pay a compensatory benefit where the divorce is granted exclusively to the husband who claims it. Marriage breakdown must have occurred in specific circumstances (for example, domestic violence).

In principle, it is paid capital the amount of which is fixed by the judge or by the spouses in a convention.

A spouse who considers himself or herself disadvantaged as a result of the divorce must apply for a compensatory benefit.

It is imperative that the request be made during divorce proceedings.

Once the divorce has become final, it is no longer possible to claim a compensatory benefit.

The compensatory benefit shall be fixed on the basis of the difference in the current and future standard of living of the spouses, according to the needs of the spouse to whom it is due and the resources of the spouse who pays it.

In order to determine the amount of the compensatory benefit payable by one of the spouses to the other, the following factors must be taken into account:

• Length of marriage

• Age and health status of spouses

• Professional qualifications and status

• Total income of each spouse

• Consequences of a spouse's professional choices during the common life for the education of children (part-time, bracketed career...) or to promote the career of his spouse

• Estimated or foreseeable assets of the spouses, both in capital and income, after the liquidation of the matrimonial property regime

• Existing and foreseeable entitlements (early retirement, birth of a child for the spouse creditor...)

• Predictable retirement pensions in light of reduced pension entitlements for spouses who have made professional sacrifices to support spouses' careers or children's education

The spouses shall establish a declaration of honor the accuracy of their resources, income, wealth and living conditions (e.g. unemployment).

In case of difficulty, the Jaf: titleContent or the spouses may have the assets of each of them assessed. This assessment can be made by any qualified professional (e.g. a notary, a forensic expert).

The compensatory benefit becomes due from the moment the divorce is final, i.e. when it is no longer possible to exercise a remedy (call or appeal in cassation).

If the spouses have signed an acknowledgement of the decision (i.e. they accept the judgment and waive the right to appeal), it is due on the date of signature of the decision.

As part of a divorce by mutual consent, it becomes chargeable when the agreement is registered with the notary.

The compensatory benefit may be paid in:

• Capital (sum of money)
• Assignment of property in property, a temporary right (e.g. a time-limited right to live) or life of use and habitation or of usufruct
• As a life annuity

Payment of capital

The compensatory benefit is paid, in principle, in the form of capital.

Assignment of property

Exceptionally, by judgment or by convention, property may be allocated to the spouse receiving the compensatory benefit. The compensatory benefit must not be paid in the form of capital.

It may be movable property (e.g. a vehicle) or real estate corresponding to the value of the compensatory benefit. This property can be a property of the community, a property in division or a clean property.

The husband's agreement debtor is required for the ownership of property received by him by succession or gift.

The property may be allocated by:

• Full ownership
• Right of use and residence
• Usufruct

The value of the property awarded as a compensatory benefit must be determined by a qualified professional (e.g. a notary, a forensic expert).

Payment in the form of life annuity

The compensatory benefit may be paid as a life annuity. This is possible only in exceptional cases where the age or state of health of the spouse who can benefit from it does not allow him to support himself.

When requested before the Jaf: titleContent, the latter must give reasons for its decision.

This life annuity is indexed to keep pace with the cost of living.

The payment is not limited in time.

The amount of the pension may be revised, suspended or abolished depending on the evolution of the resources or the needs of the former spouses (e.g. retirement). It may not exceed the amount initially fixed.

Payment in the form of a fixed-term annuity

In a divorce by mutual consent, the spouses may provide that the compensatory benefit be paid in the form of an annuity for a fixed period.

Payments of this annuity cease after a number of years fixed by the spouses (e.g. 10 years) or on the occasion of a planned event (e.g. retirement of the spouse) debtor).

It is not the staggering of capital.

In the event of non-payment of the compensatory benefit, it is possible to engage recovery procedures.

You have to go to a commissioner of justice (former bailiff and judicial auctioneer).

The ex-husband creditor has a 10-year period to get it back when it's paid in the form of paid-in capital in one installment. The time limit shall start as soon as the divorce decision has become final.

For the compensatory benefit paid in the form of deferred capital or an annuity, it is possible to request payment of arrears the last five years.

The Commissioner of Justice may implement:

• Direct payment

• Bank Account Entry

• Wage Entry

• Assignment Entry
• Sales Entry

If the Commissioner of Justice is unable to recover the compensatory benefit, the former creditor spouse may file a complaint with the Caf: titleContent which collects only if the maintenance of a child and the compensatory benefit is not paid.

When the Commissioner of Justice fails to recover the compensatory benefit or the conditions are not met to appeal to the Caf: titleContent, it may be recovered by the State Treasury.

In the event of non-payment of the compensatory benefit, the former creditor spouse may file a complaint. It is an offense of abandonment of family punishable by 2 years of imprisonment and €15,000of fine.

If the ex-husband's bad faith debtor causes prejudice to the former spouse who is the creditor, the latter may bring the matter before the Jaf: titleContent in order to seek the fixing of compensatory damages.

In case of significant change in the resources or needs of either former spouse, the compensatory benefit may be revised.

If the ex-spouses agree, the modification may be made by convention which is to be approved by the Jaf: titleContent.

In the absence of an agreement between the former spouses, the Jaf may be seized by subpoena.

These procedures require ex-spouses to each have a lawyer.

The Jaf of the ex-husband's home creditor is competent.

If one of the ex-spouses does not have sufficient income, he may apply for legal aid to cover the costs of the procedure (lawyer, commissioners of justice, expert opinion...).

On the death of the ex-husband debtor, the payment of the compensatory benefit shall be passed on to the heirs, unless they renounce the estate.

The balance of the compensatory benefit becomes immediately due whether it is paid in capital or in the form of an annuity.

The compensatory benefit shall be deducted from the estate. The heirs are not obliged to pay it out of their own funds.

By notarial deed, the heirs of the former debtor spouse may decide to maintain the settlement conditions set before his or her death. This notarial act must be notified to the former spouse who is the creditor if he is not present when the act is signed by the notary.

In this case, the heirs of the former debtor spouse must pay the benefit out of their personal funds if the estate assets are insufficient. They may at any time release themselves from the balance of the capital outstanding. They may request a revision of the conditions for payment of the compensatory benefit.

In the case of a request for review, the procedure shall be subpoena in front of Jaf: titleContent of the domicile of the former creditor spouse. The lawyer is obligatory.

Each heir can carry out a procedure independently of the others (debt division) for its own share of the compensatory benefit.

The ex-husband creditor who wishes to change the forms of payment of the compensatory benefit may take proceedings against only one of the heirs of the former debtor spouse.

The procedure is by summons before the Jaf: titleContent of the domicile of the former creditor spouse. The lawyer is obligatory for all parties.

For example, the debtor ex-spouse has several heirs from different unions. The former creditor spouse may accept the share of the compensatory benefit due by his or her common child. He can take legal action against another heir (daughter-in-law, son-in-law) of his ex-husband in order to have no further financial relationship with him.

The remarriage, Civil partnerships: titleContent or the cohabitation of the ex-husband creditor may impact their compensatory benefit as their resources change.

At the time of divorce, the former spouses were able to decide by mutual agreement that the payment of the benefit ceases in the event of remarriage, Civil partnerships: titleContent or cohabitation of the beneficiary.

The ex-husband debtor may request its revision by Jaf: titleContent, but only in certain cases:

• If the compensatory benefit is paid in the form of installment capital, the debtor ex-spouse may only request a revision of the payment deadlines but not of the amount of the initial capital,
• If the compensatory benefit is paid in the form of an annuity, the former debtor spouse may request its revision or cancelation.

To enter the Jaf: titleContent an application for review or termination of the compensatory benefit, theattorney is required.

The court having jurisdiction shall be that of the domicile of the creditor.

If one of the parties does not have sufficient income, it may apply for the benefit of thelegal aid to cover the costs of the proceedings (lawyer, commissioner of justice, etc.).

Depending on the forms of payment of the compensatory benefit, it may or may not be deductible from the tax of the person paying it and may or may not be taxable for the person receiving it.

If the compensatory benefit is paid within 12 months of the judgment, it is not taxable.

When the compensatory benefit is paid in the form of an annuity, it follows the tax scheme for maintenance payments.