Divorce - maintenance to the customer's head

The judges have an official scale for determining the amount of alimony in cases of separation of parents. But this tool causes more problems than it solves ! The disparity of decisions from one court to the other never ceases to amaze.

"In terms of maintenance, do not look for too much logic, instead, look at the side of the lottery that the case law, you'll most likely just drop." This response to a question posted on Jafland.info a site dedicated to parents faced with the twists and turns of family justice, gives an idea of how the individuals perceive it to be !

After the separation of a couple, in the presence of a child, the issue of maintenance often becomes one of the most conflict between the parents. In all logic, that which ensures the primary custody of the offspring is entitled to his ex-partner to a financial contribution to maintenance and education. It is a right. Whether married or unmarried couples, provided that the filiation of the child is recognized.

Yet, we swim in the open arbitrary. The ministry of Justice has itself made the observation. Pointing to the litigation of mass generated by the fixing of alimony, including more than 150 000 decisions in 2008, it was the disparity in the amounts allocated according to the courts. And was concerned about a certain lack of understanding of decisions on the subject. In 2010, a solution was proposed to guarantee the equality between parents seeking child support. Since, a reference table developed by the department of Justice is making available to judges to help determine the amount of the contribution to the maintenance of children. Widely disseminated, this tool should help reduce geographical disparities. What you need to make finally equal before the law, the divorced parents ? Las, three years later, the result is the same. Is it any wonder that the hopes based on this table, which is supposed to harmonize the decisions of the judges, have been disappointed when a quick analysis reveals incoherence in the eyes of the law !

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It is the civil Code, in article 371-2, which defines the principle of alimony. "Each of the parents contributes to the maintenance and education of the children in proportion to his resources, those of the other parent, as well as the needs of the child. "In other words, the judge determines the habitual standard of life of the child in the light of the social status and economic prosperity of its parents, and distribute the financial burden to a proportion of the income of the one and the other. However, the reference table of pensions has cure of the income of the parent who retains custody of the children, focusing only on those of the parent who must pay the maintenance ! In fact, where it was the establishment of benchmarks, the table brought a little more confusion, in the opinion of many lawyers. And its strict application leads to decisions are sometimes incomprehensible.

Strict application here, a simple indicative value elsewhere

The witness of Stone testifies : "I welcome both of my children one week out of two at my home. I pay half of their expenses : canteen, school, baby-sitting service, etc It is their mother who receives the family allowances of 513 euros. At the end of the account, after deducting our expenses of housing, we have both a budget equivalent. Despite this, the judgment forces me to pay 700 euros a month alimony to my ex-wife. "For 5 000 euros of income of the liable parent, with two children in residence programmes, the schedule provides 352 euros of support for each.

The reference table has only an indicative value and may not be imposed, or the parties or their counsel, nor the judges. Free to use a little, a lot... or not at all. You said arbitrary ? Most of the judges for family affairs (JAF) to use as a simple element of discussion with the parties, to the image of Valerie Baudrillard, judge at the tribunal de grande instance (TGI) of Beauvais : "at the hearing, I give a first digit from the indicative scale of child support, I gather the proposals of the parties, their comments on their particular situation as well as the supporting documents, and I statue, taking into account all these elements. "For his part, Christine Colas des Francs, head of the department of family affairs of TGI Rennes, says that the use of the table is widespread in its jurisdiction :" We find as well a harmonisation of the judgments in the situations referred to by the grid, except in special cases. "

The income of the new spouse recognized... or not

The lawyers, too, are divided. They operate the repository when it is in the interest of their client, and the eroding arguing other elements when its application the dessert. Paule Aboudaram, lawyer at the bar of Aix-en - Provence, does not take into account the scale : "I am in favor of a customization of court decisions and very attached to the judge's discretion, which implies that we may provide records very supported. "For Sophie Binet, a lawyer at the bar of Versailles," the repository is an inadequate and incomplete, and, to the extent that it is unclear what judges will apply it, it adds to the insecurity in the handling of cases of alimony ".

Another topic of dispute : the taking into account of the income of the new spouse or life partner of the parent who must pay maintenance. The judges includein their calculation ? That certainely ! says the majority of the JAF. Logic, in regard to the legal status of step-parent. Legally, he is a perfect stranger, could not claim any right on its step-children. Only the biological parents assume responsibility for the moral and financial of the child. In theory, the step-parent is a third party in relation to the case and can not be held to an obligation of support. This principle would be simple if a judgment of the Court of cassation, 25 April 2007 did not come with the chip ! According to the supreme judges, to encrypt the amount of the pension, it is necessary to appreciate the accommodation costs of the debtor, taking into account the income of the new spouse, since this one is supposed to participate in... This principle is limited to housing. Nathalie, girlfriend of a father of two children, recently divorced, who assumes that his earnings have been taken into account. "The lawyer of my companion has committed an error in stating my income to the judge. I was earning, at that time, 3 000 euros per month, but I was an employee in the province and he lived in the paris region. We each had a rent to pay. To live with my friend in the paris region, I had to go to my account and my earnings have decreased. But he can draw no argument to be re-evaluated to decrease maintenance. In this case, I am regarded as a stranger to the case ! "

The income of the cohabiting partner, so this is another parameter that is considered with the highest heterogeneity according to the records. It all depends on the skill of the lawyers and the discretion of the magistrates. Chantal Couturier-Leoni, lawyer at the Paris bar, systematically refuses to pass on such income, except in the case of remarriage, as they will be shown on the tax notice. Reason : this is a third party in the conflict. Sophie Binet, as far as it communicates when it is to the advantage of his client and is opposed in the opposite case. For his part, Paule Aboudaram believes that it is often detrimental to refuse to disclose the resources of the common law, " because the judge has the impression that he conceals something."

Taking account of family allowances : on a case-by-case

Also a source of disparity : family allowances. In a decision of November 17, 2010, the Court of cassation states that, " for the determination of the contribution of each parent to the care and education of children, family allowances can be taken into account in the context of the resources that each of them has ". It is therefore for the judge to decide, on a case-by-case basis, if it appears justified or not to include family allowances in order to appreciate the resources of the parents. Depending on the case, a euro is would it not be another euro ?

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" Has similar situations, different decisions "

" Despite the existence of criteria and principles listed by the civil Code, there are no real rules regarding the fixing of alimony. This explains that similar situations can give rise to different decisions. Thus, the level of income equal, a worker and a business manager or a craftsman will not always be in the same boat. For example, I was confronted with a magistrate who refused to take account of the rent expense of my client, a business leader, starting from the principle that a line of the operating account of his company domiciled at his home address was in all likelihood at the expense of housing", without having neither the certainty nor even the slightest beginning of a proof ! On the contrary, a magistrate has refused to make support payments to the dependent of a parent who had not communicated any room financial, explaining that he was not in a position to rule on this point ! "