Frequently asked questions
To divorce by mutual consent, do you need one or two lawyers?
- Divorce by mutual consent implies that the spouses agree on all points.
- In the past, it was possible to divorce by choosing a single lawyer. Since the 2016 reform, divorce by mutual consent by deed of lawyer requires that each party has their own lawyer.
In case of alternate residence, should the sharing time be equal ?
- For alternate custody, the spouses must live nearby so that the child does not have to spend hours of transportation to reach his other parent and his school.
- In practice, in the majority of cases, alternate residence means one week with the mother, one week with the father.
- But this is not a rule of law.
- Shared custody may be uneven.
- For example, spouses can plan :
- to share alternating weekends,
- that the mother will have Mondays, Tuesdays and Wednesdays while the father will have Thursdays and Fridays or vice versa.
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The amount of the compensatory allowance :
- This benefit is intended to compensate for the disparity created by divorce, but is not intended to correct the inequalities in social status between the spouses.
- Let me explain :
- For example, a woman marries a man who earns three times more than she does. Three years later, the couple divorced and had no children. The wife will not be entitled to any compensatory allowance: because of the marriage, she has made no sacrifice, has not lost renounced her career, or stopped her job to raise children...
- Quite different will be the case of the wife who divorces and who has sacrificed her professional career to raise children. She will be entitled to a compensatory allowance, to compensate for the sacrifices which she had to make during the marriage, by mutual agreement, in the interest of the family.
- The amount of the compensatory allowance which will be allocated to a spouse at the time of the divorce will then depend on the disparity of income between the spouses, their needs, the number of years of marriage, the number of children.
- Naturally, the assets available to each of the spouses will be likely to influence the amount of this compensatory benefit.
- For example, if the wife who has sacrificed her professional career has significant personal wealth, this will be something that will be taken into account by the divorce judge. This will be an element likely to reduce the disparity created by divorce, that is to say that the spouse will obtain a smaller amount.
Can child support payments be revised ?
- Support payments must first be subject to annual indexation based on the cost of living. An INSEE index is applied. That is, the pension will not be the same as it was originally set and ten years later.
- More generally, however, the amount of support is always subject to review: Divorced parents can apply again to the judge to request a review of the support when a new element has arisen.
- This revision can be requested either upwards or downwards. For example, a parent who loses his job, or who receives less income, may request a reduction in the pension. On the contrary, the amount of the support may be increased when one of the parents sees his income increase or when the needs of the child are greater: the needs of a young child are not the same as those of a teenager or child who is pursuing higher education.
Can child support be paid directly to a child of full age ?
- If the parents agree, the debtor parent can directly pay the amount of support to the adult child.
- However, in the absence of this agreement, the pension must continue to be paid to the parent with whom the child has his fixed residence.
- The purpose of this pension is to contribute to the upkeep and education of the child.
- The fact that the child has reached the age of majority does not mean that the parent with whom the child has his fixed residence will stop sheltering or feeding him.
When the judge fixes measures, are these measures compulsory ?
- For example, a judge fixes the residence of a child with one of the parents, and the right of access and accommodation for the other.
- The most conventional visitation and accommodation is every other weekend and half of the school holidays.
- This fixed schedule is always set in the absence of a better agreement, meaning that parents can leave the court decision aside and decide anything else if they agree to it.
- It is in case of conflict that the court decision will then be useful.
- Indeed, it will impose itself on the parties and invested with the authority of res judicata it will then have to be strictly executed.
The duration of a divorce ?
- It all depends on the divorce procedure chosen.
- In the event of an amicable divorce, that is to say in the case of mutual consent, we can speak of an express divorce.
- As soon as the lawyers are chosen, the divorce can be registered within two months.
- On the other hand, in the event of a contentious divorce, the period will be much longer.
- When the court is seized, the spouses will be summoned for the first time for conciliation (approximately two months later) which will give rise to a non-conciliation order.
- Subsequently, the procedure will have to be renewed by a subpoena for divorce, and there several procedural hearings will take place until the divorce, which may take place months later, it all depends on the conflicts and interests at stake.
Can the fault of a spouse's leading to divorce influence the amount of the compensatory allowance ?
- No longer since the new law of 2004 applicable on January 1, 2005. The legislator has separated the cause of divorce from the right to obtain a compensatory allowance.
- Under the old law, those who were found to be responsible for all faults could not obtain compensatory benefits, except in exceptional cases.
- Now, it is not because a spouse takes all the blame for him that he will be deprived of the benefit of a compensatory allowance.
- There is still an exception: if the circumstances of the breakdown require it. We can think of the case of a sudden break.
What is the tax regime for the compensatory allowance ?
- It all depends on the method of payment.
- Either the benefit is paid in the form of a lump sum or spread over a period of 12 months, either in the form of an annuity or in kind.
- If the compensatory benefit is paid in the form of a lump sum or spread over a period of 12 months: The compensatory benefit entitles the party paying it to a tax reduction equal to 25% of the amount of the payments made. Whoever receives the benefit is not taxable under income tax for the capital received.
- If the benefit is paid in the form of principal spread over a period greater than 12 months: The payments are deductible from the taxable income of the spouse who pays them. On the other hand, the recipient of the service is taxable under income tax.
- If the benefit is paid in the form of an annuity: The payments are deductible from the taxable income of the spouse who pays them. On the other hand, the recipient of the service is taxable under income tax.
- If the compensatory benefit is paid in kind (that is to say by the attribution of a right of property or use on the own property of a spouse), the benefits in kind give right to reduction of tax under the same conditions and for the same amount as a cash benefit paid at once. Whoever receives the benefit remains non-taxable.
About the DNA test: should we go through a judge ?
- The 2004 law on bioethics regulated DNA testing.
- Anyone wishing to have a DNA test must request authorization from the judge. A DNA test can never be carried out outside legal proceedings. The person against whom a test is requested must imperatively give their written agreement: this is the principle of respecting the unavailability of the human body: you cannot force a party to perform this test.
- And no DNA test can be carried out on a deceased person unless, during his lifetime, he had expressed such an agreement.
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