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Compensatory benefit

Verified 12 juin 2020 - Directorate for Legal and Administrative Information (Prime Minister)

The compensatory benefit eliminates the financial imbalances caused by divorce in the living conditions of the former spouses. The application must be filed during the divorce proceedings. The amount of the benefit may be determined by the spouses. In the event of disagreement, the benefit is determined by the judge. In the event of non-payment, it may be recovered by various means.

Divorce by mutual consent

The compensatory benefit eliminates the financial imbalances caused by divorce in the living conditions of the former spouses.

The compensatory benefit is determined by the spouses' agreement. The agreement sets out the amount of the benefit and whether it will be a capital payment or a annuity.. Future former spouses may anticipate that the payment of the benefit will cease upon the realization of a specified event (e.g., remarriage).

As a reminder, in the context of divorce by mutual consent, the future ex-spouses no longer have to go before the JAF, unless the child wants to be heard by the judge. In the latter case, the agreement must be approved by the judge.

The agreement must respect the interests of the spouses. Thus, the agreement must not assign all property solely to one of the spouses or undervalue the property.

The date taken into account in determining the compensatory benefit is the date of the divorce.

The payment of capital is the general rule when there is an agreement between the former spouses.

The benefit may also be in the form of a limited-term annuity.

In the event of the death of the person paying the benefit, the benefit shall be paid from the estate and within the limits of estate..

Thus, the heirs are not personally obliged to pay the benefit.

Capital

If the payment of the benefit was made in the form of a capital payable by splitting, the balance of that capital becomes immediately payable by the creditor..

Rent

If the annuity was an annuity, it is also converted into immediately payable capital, the amount of which is determined by a scale after deduction of the reversion pensions.

However, the heirs may decide, by notarial deed, to maintain the conditions of settlement fixed before the debtor's death. They are required to pay the benefit out of their personal funds if the estate is insufficient.

Other situation

The compensatory benefit eliminates the financial imbalances caused by divorce in the living conditions of the former spouses.

The application must be made during the divorce proceedings by one of the spouses to the family court (JAF).

The amount of the benefit may be determined by the spouses. In the event of disagreement, the benefit is determined by the judge.

Decision of the judge

The compensatory benefit is assessed at the time of divorce. It shall be fixed in accordance with:

  • the needs of the spouse to whom it is paid,
  • the other spouse's resources,
  • their situation during divorce,
  • and their situation in the foreseeable future.

In the event of a disagreement between the spouses, the judge shall designate, in the divorce judgment, the former spouse who shall pay the compensatory benefit.

The judge shall take into account in particular:

  • the length of marriage,
  • the age and health status of the spouses,
  • their qualifications and professional status,
  • the consequences of the professional choices of one of the spouses, during the common life, for the education of the children or for the career of the other spouse to the detriment of his own,
  • and the estimated or foreseeable assets of the spouses, in capital (e.g. studio purchased) and income (example: studio rents) after the liquidation of the matrimonial regime. This includes pensions.

Spouses give the judge a declaration of honor on the accuracy of their resources, income, assets and living conditions.

The judge may refuse the compensatory benefit depending on the situation of the former spouses (for example, in the absence of a significant difference in living conditions between the spouses).

It may also be refused when the divorce is pronounced to the exclusive wrongs of the spouse who is claiming the benefit in the particular circumstances of the marriage breakdown. Example: in the event of violence by one of the spouses against the other.

The date taken into account in determining the compensatory benefit is the date of the divorce.

  FYI : The approved agreement may only be amended by a new approval by the judge.

Agreement between the spouses

In the context of divorce for the acceptance of the principle of marriage breakdown, the compensatory benefit may result from an agreement between the spouses and approved by the judge. The effect of a registered agreement is the same as a court decision.

Whatever the type of divorce, the agreement must respect the interests of the spouses. Thus, the agreement must not assign all property solely to one of the spouses or undervalue the property.

The date taken into account in determining the compensatory benefit is the date of the divorce.

The compensatory benefit may be paid in:

  • Capital (e.g. payment of money)
  • Rent (paid on time or vineyard)
  • Mixed compensatory benefit (paid partly in the form of capital and partly in the form of an annuity)
  • Allocation of property furniture real estate

Payment of capital

The payment of capital is the general rule.

If the spouses do not agree, the judge shall decide on the conditions for payment of the capital benefit:

  • by the payment of an amount of money, or
  • by the allocation of property (including usufruct). The spouse must give his or her consent for the granting of property by estate or gift.

A spouse who does not have sufficient liquidity to pay the capital in one go may be authorized to pay the capital in several installments within a maximum period of 8 years.

In this case, when there is a significant change in the spouse's situation (for example, in the event of unemployment), the spouse who pays the compensatory benefit may request a review.

On review, the judge may then decide exceptionally to authorize the payment of the capital over a total period of more than 8 years.

However, the spouse who pays the benefit may at any time free himself from the remaining amounts by paying the remaining installments at one time.

Payment of a life annuity

Exceptionally, the judge may, by a decision specially reasoned, fix the benefit in the form of a life annuity. For example, if the beneficiary's situation (age or health) does not allow him to support himself.

The amount of the annuity may also be reduced by allocating a capital percentage to the spouse creditor..

The spouses may apply to the judge to replace the payment of all or part of the annuity with the payment, for example, of an amount of money or the allocation of property.

The compensatory benefit fixed in the form of an annuity may be revised, suspended or terminated in the event of a significant change in the resources or needs of either spouse (for example, when the spouse who pays the annuity retires).

The amount of the pension cannot be increased.

The request for replacement by capital (e.g. by a sum of money) or the revision of the benefit must be made by query (using the form cerfa 11530) JAF the place of domicile of the defendant. The assistance of a lawyer is not compulsory.

  Warning : the revision, suspension or deletion is not automatic and remains subject to the judge's assessment on the basis of the information provided.

Payment of a mixed compensation benefit

A compensatory benefit mixed may be determined by the judge.

In this case, part of the benefit is paid in the form of a capital and another in the form of an annuity.

Attribution of movable or immovable property

When the compensatory benefit is paid in this form, the judge examines the value of the abandoned property to determine whether the compensatory benefit is in the best interests of both spouses.

Maintenance recovery procedures shall apply to compensatory benefits, except for the benefit paid in capital which is excluded from the procedure for direct payment..

They shall include direct payment or the procedure for entering remuneration.

The applicant may family allowance fund assistance or address the Public Treasury if the direct payment and payment capture procedures have failed.

Capital

In the event of the death of the person paying the benefit, the benefit shall be paid from the estate and within the limits of estate..

Thus, the heirs are not personally obliged to pay the benefit.

If the payment of the benefit was made in the form of a capital payable by splitting, the balance of that capital becomes immediately payable by the creditor..

However, the heirs may decide, by notarial deed, to maintain the conditions of settlement fixed before the debtor's death. They are required to pay the benefit out of their personal funds if the estate is insufficient.

Rent

In the event of the death of the person paying the benefit, the benefit shall be paid from the estate and within the limits of estate..

Thus, the heirs are not personally obliged to pay the benefit.

If the annuity was an annuity, it is also converted into immediately payable capital, the amount of which is determined by a scale after deduction of the reversion pensions.

However, the heirs may decide, by notarial deed, to maintain the conditions of settlement fixed before the debtor's death. They are required to pay the benefit out of their personal funds if the estate is insufficient.