Compensatory service :
Since January 1st, 2005, the compensatory service became the rule as regards divorce. However, there will remain alimonies poured for the children, in the cases of divorces pronounced before this date, like during the divorce procedure. Between the compensatory service and the alimony, there exist differences, but also similarities which make them merge, sometimes.
The compensatory service is a fixed allowance, final, intended to compensate for the disparity which the rupture of the marriage respectively creates under the living conditions of the husbands.
Conditions of attribution
In which cases?
Whatever the case of divorce, a spouse can require of the other to profit from a compensatory service. It immediately takes in theory the shape of a payable capital in the form of a payment of an amount of money, an abandonment of personal property or real, in property, usufruct or for the use or the dwelling, or of payments spread over one eight years maximum duration, these various methods being able to be cumulated.
Exceptionally, a life annuity can be allocated, if the situation of the applicant justifies it, when its age or its health condition prevents it from providing for its needs. A fraction can be allotted in capital. The revenue is then undervalued.
How is it fixed ?
The compensatory service is fixed :
• maybe by the judge, during the judgment of divorce.
It takes account of the situation of the husbands at the time of the divorce and its evolution in a foreseeable future. To determine the needs for the husband who perceives this service and the resources of the other unites which pours it, the judge takes in particular into account the duration of the marriage, the age, the health condition of the partners, their professional qualification, the consequences of the professional choices made by one during the common life for the education of the children and time that it will still be necessary to devote to it, their inheritance after the liquidation of the matrimonial mode, their respective situation as regards pensions, of retirement.
• maybe by the parts themselves within the framework of a divorce by consent, or in the other cases, if the parts manage an agreement. In these two situations, this agreement is subjected to the homologation of the judge. The amount and the modes of payment are freely laid down by the parts which can plan temporary revenue, a clause envisaging the automatic suspension of the revenue at the date of realization of a given event (retirement of the debtor, remarriage of the creditor, etc).
The revision
Because of its contractual character, the compensatory service is not revisable under the same conditions according to whether it is versed in spread out capital
or in the form of revenue.
The capital cannot be revised in its amount. Only the methods of its payment can vary. In this precise case, the judge with the family businesses can re-examine the duration of payment initially envisaged and, if the situation requires it, exceed the eight years limit.
On the other hand, the revenue can be revised as for its amount, suspended or even removed, in the event of material change in the resources or the needs for
one or the other of the parts. The amount initially fixed by the judge cannot however not be exceeded.
A person who does not pour, during more than two months, with its ex-unites, the compensatory service in the form of revenue, makes the offence of abandonment of family. This offence of abandonment of family is liable to a sorrow of two years imprisonment to more and 15.000 euros fine at the maximum.
As long as the service is not revised, it is completely due by the debtor.
If the debtor voluntarily organizes his insolvency to prevent paying the service that it must, the creditor can carry felt sorry for this reason. The incurred risks are three years of imprisonment and 45.000 euros fine.
Covering in the event of non-payment
When a debtor does not pour the compensatory service fixed by decision of the courts, the creditor has several means to obtain the payment from it. These steps are also possible if the payment is carried out only in an irregular way. The simplest means of covering is the procedure of direct payment. But there exist other possible ways.
The direct payment
To recover the compensatory service in the form of revenue, the direct payment is a simple, free and fast procedure.
It makes it possible to obtain the payment of the service by thirds (employer, banking organizations or of payment of the services) which have sums due to the debtor. This means of covering can be used as soon as deadline of the service fixed by decision of the courts was not regulated completely.
The direct payment has made it possible to obtain the unpaid monthly payments for at least six months as from the date of the claim for direct payment, as well as the payment of the monthly payments to come, progressively where they are due.
The creditor must address to the bailiff of the place of his residence, provide him the judgment relating to the service and any information on his debtor (identity, residence, address of the employer, registration to the social security). The usher will be able to then notify with the third a claim for direct payment per registered letter with request of acknowledgment of delivery.
NB: The costs of proceedings are the responsibility of the debtor.
Other possible ways
Independently of the procedure of direct payment, other ways of execution can be used.
These procedures have been particularly useful to allow the covering of a service in the form of revenue due for more than six months or for a payable compensatory service in capital.
Seizure-attribution makes it possible to the creditor to immediately recover the sums available on the bank accounts of its debtor.
The creditor must be titular of an executory title (notary act, ordinance of refusal to settle out of Court, judgment or convention approved by the judge). He will seize the bailiff of the place of residence of the debtor who will inform the bank of interested act of seizure.
The collaboration of the bank is obligatory; failing this, it is exposed to pay the debts of its customer. Under penalty of nullity of the procedure, the debtor must be informed, by act of usher and within eight day following the significance of the act of seizure at the bank.
In the event of dispute of the seizure on behalf of the debtor, the payment is differed until the judge of the execution returned his judgment.
The usher will have to thus present to the bank the certificate non-contestation or the judgment drawing aside the dispute of the debtor in order to release the sums due.
The seizure-sale makes it possible to make seize and sell the movable goods of the debtor. This procedure remains rare.
Covering by the Treasury
If one of the procedures described above did not allow the covering of the service in the form of revenue, the services of the Treasury can, close a request on behalf of the creditor, to give the responsibility itself to recover the sums which had for this reason.
The request will have to be addressed to the public prosecutor of the Court of Bankruptcy of the residence of the creditor, by registered letter with
ask of acknowledgment of delivery.
Model of letter
Name
First name
Addresses |
Date |
Mr. Public prosecutor,
I have the honour to state you that Mister (or Madam): |
Name
First name
Addresses
Profession
Addresses of the employer
Social security Number |
(of your debtor) |
did not pour me since… the compensatory service that it (or it) owes me under the terms of the decision of which you will find, herewith, a copy. This compensatory service is of rising of… euros per month and it is already owing me an arrear of… euros as from…
Please agree to admit me with the procedure of covering by the Treasury.
Please accept, Mr. Public prosecutor, the expression of my distinguished consideration.
Signature |
|
| Applicant : |
nobody forming a legal action. |
| Defendant : |
nobody against whom a legal action is formed. |
| Creditor : |
nobody with whom it debt must. |
| Debtor : |
Nobody who owes the debt. |
|
http://www.vos-droits.justice.gouv.fr/
The purpose of the compensatory service is to compensate for the disparity which the rupture of the marriage creates under the respective living conditions of the husbands. It can be allotted to one of the husbands by the judgment of divorce, whatever the case of divorce or the distribution of the wrongs.
It is contractual and takes the form of a payment in capital or, in exceptional circumstances, of a life annuity.
Determination of the compensatory service
The compensatory service is evaluated contractually at the time of the divorce and is fixed according to the needs for the husband with whom it are versed and for the resources of the other by taking account of their situation at the time of the divorce and the foreseeable evolution of this one.
It can be given by the husbands or, in the event of dissension, by the judge:
Determination by agreement between the husbands:
In this case, the compensatory service is given either by the convention of the husbands in the event of divorce by consent, or it can result from an agreement of the husband, approved by the judge if he respects the interests of the parts and the children, or the husbands freely determined the forms and modes of payment of the service.
Determination by the judge:
In the event of dissension between the husbands, it is the judge who determines the compensatory service. He takes into account in particular:
- duration of the marriage,
- the age and the health condition of the husbands,
- their qualification and their professional situation,
- consequences of the professional choices of the one of the husbands during the common life for the education of the children and time that it will still be necessary to devote to it or to support the career of sound united with the detriment of his,
- the inheritance considered or foreseeable of the husbands, their respective situation as regards retirement pensions…
The husbands must certify on the honour the exactitude of their resources, incomes, inheritances and living conditions and the judge can require documents in proof.
Forms of payment
The payment of a capital is the general rule. In the absence of agreement, the judge decides methods of payment of the provision of capital is:
- the payment of an amount of money,
- the attribution of goods in property or a right temporary or for life of use, dwelling or usufruct. The debtor must give his agreement for attribution in property of goods which it received by succession or donation.
If the husband does not have sufficient liquidities allowing to discharge it in once, it can be authorized to pay the capital in several periodic expiries, within an eight years maximum delay.
The payment of revenue with life can exceptionally exist, when the personal situation of the recipient, according to his age or of its health condition, does not enable him to provide for its needs.
The payment of a mixed compensatory service can be fixed by the judge, when the circumstances require it. On this assumption, the amount of the revenue is undervalued by the attribution of a fraction in capital.
Death of the debtor
In the event of death of that which pours the service, the payment of this one is taken on the succession and within the limits of the succession credit. Thus, the heirs are not held personally to the payment to the service.
If the payment of the service is carried out in the form:
- of a payable capital by fractionation: the balance of this capital becomes immediately eligible,
- of a revenue: this one is substituted in an immediately eligible capital whose amount is determined by a scale fixed by decree after deduction of the widow survivor's pensions.
However, the heirs can decide, by notary act, to maintain the methods of payment laid down before the death of the debtor.
They are then held of the payment of the service on their personal funds if the succession credit is insufficient.
However, if the service is versed in the form of revenue and that the recipient of this one perceives a widow survivor's pension, its amount is then deduced from it.
To obtain the payment of a compensatory service, when it takes the form of revenue, the procedures are the same ones as for the covering of alimony. They include/understand the direct payment, the procedure of attachment remuneration.
The applicant can ask for the assistance of the allowance office family (CIF), or address himself to the Treasury if the procedures of direct payment and attachment remuneration failed.
Revision of the compensatory service
In the event of service fixed in the form of capital spread out, if it is observed a material change of the situation of the debtor, this one can ask to the judge the revision modes of payment. Exceptionally, the judge can then decide to authorize the payment of the capital over one total duration higher than 8 years. The debtor can constantly pour in only once the remaining expiries of the capital.
In the event of service fixed in the form of revenue, if it is observed a material change in the situation of the one of the husbands (unemployment of the debtor, remarriage of the recipient…), the revenue can be revised, suspended or removed. The revision cannot cause to carry the revenue to a higher amount to that fixed initially by the judge. The debtor or, in certain cases the creditor, can ask the judge to convert the revenue into capital. The amount of this capital is determined by application of a scale fixed by decree.
The request must be addressed by request to the judge of the family businesses of the place of the defendant. Each husband must produce the declaration certifying on the honour the exactitude of his resources, incomes, and inheritance and living conditions.
But the revision is not automatic and remains subjected to the appreciation of the judge according to the provided elements.
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