The compensatory allowance paid by one spouse to another compensates, as far as possible, the disparity that the divorce will create in the living conditions of each of the former spouses.
Since the law of May 26, 2004, it can be granted in all types of divorce proceedings , provided that the legal conditions relating to its attribution are met.
Apart from the case where the spouses agree on the amount and terms of payment of this benefit ( divorce by mutual consent mainly), it is the Family Justice who determines these two elements.
To do this, he takes into account:
- the needs of the spouse requesting the benefit
- the resources of whoever has to pour it
- the situation at the time of divorce and in the foreseeable future
Here is the (non-exhaustive) list of elements that are taken into account by the magistrate:
- duration of the marriage
- age and state of health of the spouses
- their qualification and professional situation
- the consequences of the professional choices made by one of the spouses during the joint life for the education of the children and the time that it will be necessary to devote to it or to favor the career of the spouse to the detriment of his
- the estimated or foreseeable inheritance of the spouses, both in capital and in income, after the liquidation of the matrimonial regime
- their existing and predictable rights
- their respective retirement situation
The spouses must provide the judge with a declaration of honor (certifying the accuracy of their resources, income, assets and living conditions).
The Judge may compel the spouses to produce this document. However, no special sanction exists if it is not debated by one or both parties.
The compensatory allowance may be paid in the form of capital (which, if it is a sum of money, can still be paid in installments over a period of up to 8 years) and, exceptionally, an annuity lifetime (which is indexed to the consumer price index).
The Judge may require the debtor to provide a guarantee of payment of the compensatory allowance (pledge, surety …).
The creditor may also, in the event of non-payment, have the bailiff proceed to enforcing the decision (seizures, setting up a direct payment procedure by the debtor's employer).
If it is in principle definitively granted to the creditor spouse, the compensatory allowance may, exceptionally, be revised.
It is possible to convert a compensatory benefit paid in the form of a life annuity into capital, but not the other way around.
I have often heard clients ask what percentage of their resources will represent the amount of this benefit … (they are convinced that this amount should not exceed 30% of their resources!).
Each situation is different and it is impossible to answer this question precisely.