Compensatory Allowance

Definition

A compensatory allowance may be awarded to one spouse by the decree of divorce, regardless of the divorce or the divorce grounds.

It is intended to compensate for the disparity that creates marital disruption in the lives of the respective spouses.

It has a fixed nature and takes the form of a lump sum or of a life annuity in exceptional circumstances.

In some cases, the judge can refuse if equity so requires:

-    depending on the situation of the ex-spouses,
-    or when the divorce is granted solely to blame the spouse seeking the benefit, under the particular
     circumstances of the marriage breakdown.

Determination of the compensatory allowance

Evaluation of the compensatory allowance

The compensatory allowance shall be assumed at the time of divorce and fixed according to the needs of the husband to whom it is paid and the other’s resources, taking into account their position on divorce and its development.

It can be determined by the spouses or, in case of disagreement, by the judge.

Determination by agreement between the spouses

The compensatory allowance is determined either by agreement between the spouses in case of divorce by mutual consent or it may result from an agreement between the spouses, an agreement approved by the judge if it respects the interests of the parties and children.

In both cases, the spouses are free to determine the form and manner of payment of the benefit for example,  pension for a limited time.
Determination by the judge

Divorce law imposes that the judge determines the compensatory allowance in case of disagreement between spouses.

It takes the following aspects into account:

-    duration of marriage,
-    the spouses’ age and health status,
-    their qualifications and their employment status,
-    consequences of career choices of either spouse during cohabitation for children's education and how
     long it will take to spend or to promote the spouse’s career at the expense of their own,
-    heritage estimated or expected of spouses, their respective positions on pensions...

The spouses must certify the accuracy of their resources, income, wealth and living conditions and the judge may require evidence.

Forms of payment

Payment of capital

The payment of capital is the general rule.

Failing agreement, the judge decides the terms of payment of the lump sum are:

-    the payment of a sum of money,
-    the allocation of property ownership or right to use temporarily or for life, habitation or usufruct.
     The debtor must agree to the allocation of ownership of any property received by gift or inheritance.

If the husband does not have sufficient cash to pay it once, he can be allowed to pour capital over several periodic intervals, within a maximum of 8 years.

An annuity

The benefit may exceptionally take the form of an annuity, where the personal circumstances of the beneficiary do not allow them to meet their needs, depending on their age or their health.

Payment of a mixed compensatory allowance

A "mixed" compensatory allowance can then be fixed by the judge, when the circumstances require it. In this case, the amount of the pension is reduced by the allocation of the capital.

Death of debtor

In case of death of the person who pays the benefit, the payment thereof shall be levied on the estate and within the estate.

Thus, the heirs are not personally liable for payment of the benefit.

If the benefit payments take the form of payable capital, it becomes payable immediately, by splitting the balance of this capital.

If it is an annuity, it also immediately converts the payable capital into the amount determined by a scale after the deduction of survivor benefits.

However, the heirs may decide to keep the settlement terms set before the death of the debtor by deed.

They are then required to make the payment of the benefit from their personal funds if the estate is insufficient.

How to get the payment

Obtaining payment of a compensatory allowance

When the compensatory allowance takes the form of an annuity, the procedures are the same as for the recovery of alimony. They include direct payments.  The applicant may request the assistance of the family allowance fund (CIF) or contact the State Treasury if the direct payment procedures and entry fees have failed.

Revision of the compensatory allowance

A lump sum paid in installments

In case of significant change in the debtor's circumstances, they may ask the judge to review the terms of payment.

Exceptionally, the judge may decide to authorize the payment of capital on a total period of more than 8 years.

The debtor may be paid at any time once the remaining maturities of capital are identified.

Benefit determined as an annuity

In case of significant change in one spouse’s situation (unemployment of the debtor, remarriage of the recipient...), the annuity may be revised, suspended or deleted.

The revision may not have the effect of raising the rent to an amount higher than the one originally set by the judge.

The debtor or, in some cases, the creditor may ask the judge to convert the pension capital. The amount of capital is determined by applying a scale fixed by decree.

The request must be made by motion to the family court of the defendant’s place. Each spouse shall make a return certifying the accuracy of honor of their resources, income, wealth and living conditions.