Divorce: How to calculate and get paid a compensatory allowance ?
Are you getting divorced? Your spouse has more income and assets than you? After your divorce, your standard of living will decrease. You can then claim a compensatory allowance to be paid by your spouse. Your spouse refuses to pay you your compensatory allowance? Ask for the forced payment of the sums they owe you!
Everything you need to know about compensatory allowance!
What is a compensatory allowance ?
Compensatory allowance is a sum of money that your spouse will owe you, most often in the form of a lump sum, to compensate for the disparity that the divorce creates between your living conditions and those of your spouse. It is the judge who will grant you this compensation, except in the case of a divorce by mutual consent where you set the amount in the divorce agreement along with your spouse. In other cases of divorce, the judge can refuse to grant it on the basis of equity, especially if the divorce is pronounced upon the exclusive fault of the spouse who asks for this benefit.
The compensatory allowance has nothing to do with alimony. Alimony concerns the education of your children, whereas the compensatory allowance concerns only the financial imbalance created by the breakdown of the marriage.
How to determine the amount of the compensatory allowance?
You can estimate the amount of your compensatory allowance free of charge by visiting the AGN Avocats website and using the compensatory allowance calculator. The compensatory allowance is determined according to the needs of the person requesting it and the resources of the person who will have to pay it.
When should the compensatory allowance be evaluated?
To evaluate the compensatory allowance, we take into account your situation at the time of the divorce and its evolution in the foreseeable future
What are the elements taken into account to grant you this compensatory allowance?
- The length of your marriage, the longer your marriage, the higher the compensatory allowance,
- your level of professional qualification;
- your professional situation;
- your age;
- your state of health;
- the professional sacrifices you have made for the education of your children or the professional success of your spouse;
- your current and foreseeable wealth, and whether you can benefit from potential future donations;
- your income;
- your expenses.
Except for divorce by mutual consent, you must provide the judge with a statement certifying on your honor the accuracy of your resources, your assets, and your living conditions.
How is the compensatory allowance paid?
The compensatory allowance is usually paid as a capital sum. Your spouse will make a single payment to you, it is not a pension. However, the payment of this capital can be spread out over a maximum of 8 years, it is advisable to obtain the agreement of the judge to obtain this spreading out or to foresee it in the divorce agreement in case of amicable divorce.
If you are old or if your health condition does not allow you to support yourself, the judge may exceptionally grant you a compensatory allowance in the form of a life annuity. You will then receive a monthly or annual payment for the rest of your life. This annuity may be cancelled or revised at the request of your spouse.
The divorce agreement or the judge will decide how the compensatory allowance will be paid. The compensatory allowance must be paid as soon as the divorce judgment is rendered or as soon as the divorce agreement is registered and can take several forms:
- Your spouse can pay you a sum of money. You can ask for the constitution of guarantees, such as a mortgage, a pledge, a deposit…
- Your spouse can pay you a compensatory allowance in kind, by giving you a property, the ownership of a building, the right to use this building.
In order to secure the payment of the compensatory allowance, we recommend you to ask the judge for guarantees or to foresee them in the divorce agreement. In particular, the judge may require your spouse to take out an insurance policy to guarantee the payment of the compensatory allowance.
If you wish to receive an asset that your spouse has received by donation or inheritance, you should know that the judge cannot impose it on your spouse; it will be necessary to obtain their consent.
Who decides the amount of the compensatory allowance?
If you are divorcing by mutual consent, you and your spouse must agree on the amount and payment terms of the compensatory allowance in the divorce agreement, with the advice of your lawyers.
In other cases of divorce, the judge will set the amount of the compensatory allowance. Your lawyer will help you determine the best amount.
My spouse does not pay me the compensatory allowance they owe me, what can I do?
The consequences of not paying the compensatory allowance are multiple. First of all, the non-payment of the compensatory allowance exposes your spouse to the penal sanctions provided for by the offence of abandonment of family, punishable by two years of imprisonment and a €15,000 fine.
How to get your compensatory allowance paid ?
- If your compensatory allowance is paid as a capital sum.
If the compensatory allowance is paid as a capital sum, you can use the procedure of seizure and allocation, by recovering the sum due on your spouse’s bank account by seizure. This procedure requires an enforceable title, and having divorced, you have the non-reconciliation order, the divorce judgement, or the divorce agreement approved by the judge which are enforceable titles.
You must serve the writ of seizure on your spouse’s bank by bailiff. You must also inform your spouse by means of a bailiff that you have made a request for seizure from their bank. Your spouse may contest the seizure, in which case you should refer the matter to the enforcement judge. If they do not contest the seizure, the bailiff will present the bank with a certificate of non-contestation and the bank will pay you the amount due.
The unpaid compensatory allowance will be increased by the legal interest rate. The stakes are high because the legal interest rate will be increased by 5 points at the end of a two-month period after the divorce is pronounced.
- If your compensatory allowance is paid as an annuity.
In case of non-payment by your spouse of this annuity you can use a particular procedure called “direct payment procedure”. The advantage of this direct payment procedure is that it is simple and fast.
You will get the payment of the pension from your spouse’s employer or their bank. You will not have to pay any costs, as the costs of this procedure are exclusively borne by your spouse. If your spouse goes to the enforcement judge, they will still have to pay the compensatory allowance before the judge has made a decision.
If this “direct payment procedure” fails, you can use another procedure called “public collection procedure”.
This procedure allows the accountant of the Treasury to collect the allowance for you according to the same procedures as for the collection of taxes. This procedure is free of charge. You must send a registered letter with acknowledgement of receipt to the public prosecutor of the high court explaining the non-payment by your ex-spouse of your pension.
If you wish to evaluate the amount of your compensatory allowance, use the free AGN avocats calculator. You cannot agree with your spouse on the amount of the compensatory allowance? Ask your lawyer for advice. Your spouse refuses to pay you your compensatory allowance? Contact an AGN lawyer in your area who will advise you and obtain payment of your compensatory allowance as soon as possible.