Alimony during a divorce procedure in France
During a divorce procedure in France, in certain circumstances, a spouse has the right to request the other spouse to pay alimony, also called spousal maintenance (pension alimentaire in French).
Here below a brief outline
What is alimony and when is it due?
With marriage, a couple mutually agrees to various obligations, including the duty to help.
Article 212 of the French civil code states that "spouses owe each other mutual respect, fidelity, help and assistance".
"Help" corresponds to both material and moral assistance and is applicable in times of crisis for a couple.
It is the duty to help that bases a spousal maintenance request made in the context of a French divorce proceedure.
Alimony is due when in a couple, the spouses do not have the same income.
For instance, one of the spouses, usually the wife, may not have worked for several years, having stayed at home with the children in agreement with her husband.
When the spouses separate, before being officially divorced, the wife may not have the resources or insufficient resources to meet her needs and expenses.
In such a case, the spouse who is in need is entitled, during the divorce proceedings in France, to request the "help" from the other spouse.
In practice, this duty to help often takes the form of alimony and/or free use of the family home.
How is alimony calculated?
Pursuant to article 255, 6° of the French civil code "the judge may in particular [during the divorce procedure] fix alimony and provision for legal costs that one of the spouses has to pay to the other".
Spousal maintenance due under the duty to help is determined based on :
the needs of the spouse making the request, and
the contributory capacity of the spouse making the payment.
It is important to note that the "needs" of the spouse making the requests are not limited to primary needs, but must enable the spouse to maintain, as far as possible, the living standard to which he or she was accustomed during communal life.
The amount of alimony depends directly on the income of each spouse and their usual expenses, and must be calculated by a lawyer in each particular circumstance.
How long is alimony due?
In France, alimony is usually paid on a monthly basis, for the entire duration of the divorce proceedings or until the spouse in need has improved his or her financial situation, for instance by finding employment.
The duty to help only ends when the divorce judgment becomes final.
Sanctions if alimony is not paid
Not paying alimony when due is considered family abandonment in France. It is a criminal offense: the debtor is liable to two years' imprisonment and a fine of € 15 000 pursuant to article 227-3 of the French criminal code.
In any event, with the help of a French lawyer, it is possible to proceed, via a bailiff, to attachments of the debtor's salary or assets to obtain alimony payment.
What happens once the divorce becomes final?
As the duty to help ends when the divorce becomes final, so does alimony payment.
During a court divorce procedure, a lawyer can request a compensatory benefit or allowance (prestation compensatoire in French) which will replace alimony due during the divorce procedure.
Compensatory allowance aims to compensate the disparity created by the breakdown of marriage in the respective standards of living of each spouse. It usually takes the form of one (or more) lump sum payment(s) over a certain duration or an annuity.
In case of an agreement between the spouses in relation to compensatory benefit, they have complete freedom to organize the modalities and its payment (for instances, the period of time over which the compensatory payment must be made, a revision clause, ending payment of the annuity in case of remarriage or finding employment…).
Article 271 of the French civil code states that the compensatory benefit must be based on:
The debtor’s revenues and expenses (living costs, taxes, loans, amounts paid for the education of the children…), and
The creditor’s needs.
Article 271 goes on listing certain criteria that should be kept in mind when assessing the amount:
Duration of the marriage,
Ages and states of health of each spouse,
Professional qualifications, studies and job of each of the spouses,
The time spent on educating children and favouring the spouse’s career to the detriment of the other spouse,
The estimated foreseeable assets of each spouse, in capital and income, after winding-up of the matrimonial regime,
Their existing and foreseeable rights,
Their respective retirement situations.
The amount of compensatory benefit needs to be calculated, on a case by case basis, by a lawyer during divorce proceedings.
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Caterina Giudiceandrea is an English speaking divorce lawyer in France and can assist you with your divorce in France.