March 2018
“Ball and Chain” (also known as “Ball ‘n’ Chain” or “Ball & Chain”) is a blues song written and recorded by American singer-songwriter Willie Mae “Big Mama” Thornton in the early 1960s and best known through the version by Janis Joplin and Big Brother and the Holding Company, who first performed it at the Monterey Pop Festival in 1967.
Some Americans have long looked at living in France with horror because of what they see as an absence of freedom and an omnipotent state regulating every aspect of people’s lives. This was never true, however, and the last 30 years have seen modernization of the French administration, linked to drastic changes in the legal system that have increased the rights of French citizens and others living in France.
Nevertheless, many see the protection universelle maladie (PUMa) as an imposition of this magnitude. Another vestige of the old view that the state knows best is the way French law and courts still limit rights regarding name changes. And there was a time when getting married with a prenuptial agreement was seen as being the prisoner of an institution – wearing a ball and chain. As for the other topics below, I will let you decide if there is a connection.
UPDATE ON PUMA, WHICH TURNED INTO A NIGHTMARE FOR MANY
I would like to thank the Association of Americans Resident Overseas (AARO) for its help on this issue. They are on the forefront of this, and as far as I know are the only organization actively helping members deal with the problem and possibly lobbying in favor of a change. In particular, I would like to thank Eric Fenster, the AARO member who helped me draft this section.
We had feared that the new system would result in adverse situations after being implemented for about two years without collecting premiums for the coverage offered. In fact, the situation is even worse than I had expected. I would like to highlight some of the worst examples I know of (and I am not sure I have identified all of them).
1 – The 2016 premium came due after all.
In almost all situations, especially in the private sector, people expect to have to pay health insurance premiums on time. For over a year, the impression was given that the premiums for 2016 would not be collected. I was one of the few doubting that this would be true once the administration got its act together. Sure enough, it was announced that January 15 was the deadline to pay the 2016 premium. But this came as a surprise to many.
2 – People have been charged for coverage they do not have.
Since December 2017, foreigners who declare their foreign income in France while being properly covered by a private health insurance policy have received bills from URSSAF for 2016 coverage that they have never had. The reason is that URSSAF, instead of checking the database of the caisses primaires d’assurance maladie (CPAM) to find out who was covered by the old couverture maladie universelle (CMU, which PUMa replaced), got its information from the tax office and never checked if people were covered by the public system.
People who received the URSSAF bill had subscribed in good faith to private medical insurance, and no public authority had given any notice of an obligation to join the public system. Indeed, for nearly two years no one was even able to answer questions from those who had heard about PUMa.
When I learned from my AARO connection that many Americans had received the bill, we began to help them contest it on the grounds that it charged for a health coverage system in which they were not enrolled, even though French legislation stated that payment liability did not begin until the date of enrollment.
3 – People are not being charged for coverage when they need it.
This might sound like good news but it can have very adverse consequences. URSSAF was supposed to charge 8% of the global taxable net income for the year, payable per quarter. It took considerable work to figure out that some income, mainly retirement income, is exempt from this 8% premium calculation. For many foreigners who have retired in France, most if not all of their taxable income is retirement income. So they received a letter stating that they owed nothing.
The problem is that the prefecture insists all foreigners have comprehensive coverage from either the public system or a reputable company and also pay for health coverage. So foreigners who were covered by the CMU and now PUMa must show that.
First, they have sufficient assets or income from a foreign source and that the annual net income exceeds minimum wage (14,000€).
Second, that in the case of being covered by the public system, the income used for calculating the 8% premium exceeds 9,654 euros. If the income on which the calculation is based is less, the foreigner pays nothing for the health coverage.
In the past, the prefecture has always interpreted the absence premium payments, as indicating insufficient income, as they then expect a minimum income of 14,000 euros for the same period. In such situations, the prefecture systematically denies renewal of the carte de séjour based on insufficient funds entitling the foreigner to free coverage. It was somewhat logical to expect foreigners to pay for their coverage. Today, though, many foreigners have an income far exceeding this amount and yet the new way URSSAF calculates the premium results in their coverage being free of charge. The main reason is that pensions are not used in URSSAF’s cotisation subsidiaire maladie (CMS) calculation, i.e., the name of the premium paid for the public coverage.
I have no idea how the prefectures will address this issue. If they do not get new guidelines, I fear the worst, i.e., refusal to renew cartes de séjour. I really feel that one part of the administration is not keeping another part informed, and the refusal to renew the “visiteur” immigration status will come as a very nasty surprise. One can hope that properly documenting the way the CMS is calculated should force prefectures to reconsider their procedures in view of this radical change.
4 – Some people previously covered by CMU never declared their income to France.
Holders of a carte de séjour visiteur can have the card renewed without showing a French income tax statement. I advise my clients nevertheless to show the two first pages of their last #1040 to the prefecture just to prove that they had made an income declaration. But whether these people have complied with French fiscal law is irrelevant here.
Because URSSAF got only tax information from the French tax office and not CPAM, such people never got a letter and were never charged, but they continue to be covered, as CPAM does not verify whether the insured is paying into the system.
How long will this situation last? What are the likely consequences regarding the premiums owed and not paid? I ask the same question about the fact that there was no filing in France even though the person was clearly a French tax resident.
I fear the worst, as URSSAF can easily and rightfully consider this as tax cheating. In this specific instance, to help understand the gravity of the situation, I would compare URSSAF to the American Social Security.
SOUVENIR SOUVENIR – I SERVED IN THE FRENCH ARMY AS AN OFFICER
Even though I lived some years in the USA, as a Frenchman I clearly see several topics with a non-American eye.
I did my military service as an officer, having the rank of lieutenant when I left. I trained a platoon through boot camp. I was on active duty for nine months in a military academy, mainly as a juriste, but doing all the chores like any other lieutenant.
My military specialty was firearms. I trained many soldiers on the full range of firearms, from the traditional long rifle to the fully automatic machine gun.
Anyone who has been in the military has a similar experience of having been surrounded by firearms – that is the norm.
There is one experience I would like to share. The officer of the day, who is on security duty for 24 hours straight, sleeping next to the main gate, is obliged to carrying a loaded handgun at all times. The lieutenants, the youngest officers, most often served as duty officer. We were trained to be tough, and on we duty we knew what to do; military discipline ran our life, especially at such moments.
I can still remember, over 30 years later, the heaviness of this responsibility. It felt like I had about 20 pounds more on my shoulders. I took the duty seriously; in retrospect, I believe that carrying a loaded gun all the time and being the one allowed to use it in case of danger added to the weight. Of course, I never had to use it, but living with this responsibility makes one act in a more responsible, more controlled way.
The day I was discharged was the last day I operated a gun. In all my years of living in the USA, I had many opportunities but I never fired a gun. In my mind and in my life, guns are associated with a military uniform.
I know very well that the US constitution is understood to dissociate the right to bear machine guns from being in the military.
My point is that anyone who carries a firearm should be well trained, should handle the firearm responsibly as it is lethal in a manner of seconds, and should comply with security guidelines. My point of view – which I admit is a French point of view and could be completely irrelevant in the USA – is that the issue should be about the training. Getting a gun license should be like getting a driver’s license. I would go so far as to say that, just as there are several types of licenses, for driving vehicles ranging from a motorcycle to a 16-wheel tractor-trailer, there could be a similar range from permits allowing ownership of traditional hunting guns up to fully automatic machine guns.
FBI CHECK FOR VISA PURPOSES
Asking for French immigration status requires submitting proof that one does not have a criminal background. The French administration asks applicants to prove that there are no criminal convictions on their record.
In the USA, this is done through an FBI background check. The problem is that it used to take a few weeks. Now it takes several months. But in immigration visa requests, the applicant often has just a few weeks in the USA to get such documentation. Many have already settled in France in order to have everything ready to submit solid proof of an address in France and to make it easier to obtain the visa. Therefore, some private companies have managed to speed up the process.
More information can be found on the FBI website:
http://www.fbi.gov/services/cjis/identity-history-summary-checks
http://www.fbi.gov/services/cjis/identity-history-summary-checks/list-of-fbi-approved-channelers-for-departmental-order-submissions
AARO RECORDED MY 2-HOUR PRESENTATION ON DECEMBER 18
The presentation, on “Coping with French Administration,” is now accessible from my website, too, at http://www.jeantaquet.com/aaro.
I have been happily surprised by the number of people who have contacted me after watching it. I thought that a 2-hour recording was quite long, but these people did not seem to agree.
Here is AARO’s introduction to the video:
French Logic
Jean started the talk by telling the audience that France is logical. This got a good chuckle, but he continued to explain exactly how that logic works. It starts with the French Revolution and having to deal with the old elite (aristocrats) and establishing a fair system for all to be equal under the law. This was achieved with the Napoleonic Civil Code. The way that France can maintain its republic is by treating all equally and that means through identity, not aristocratic rank. Identity is established by name, date and place of birth, domicile, and profession. Your name, your birth certificate, and proof of where you live and what you do. (Reporter’s note: In France, the extrait d’état civil, which is the birth certificate document, contains more than just your birth information, which is why the administration frequently wants to see a recent one.) That is the logic behind the constant request for documents.
The video is accessible on the AARO website at:
https://aaro.org/events/event-reports/641-coping-with-french-administration
Best regards,
ANSWER
We need to deal with a common misconception about what a prenuptial agreement is and does. It defines the couple’s marital regime, and is critical because it states who owns what, and why.
When a couple does not sign a prenuptial agreement, the law applies a marital regime to them by default. The norm is to apply the law of the country or state where the wedding occurs. The couple may never know what regime applied to them until there is an estate and even then the lawyer (or notaire, in France) may not explain much about it.
International couples have an interest in choosing their own regime. At the very least, two different laws could be applied, as they have different nationalities. Thus, to keep things safe and simple, voluntarily deciding before the wedding makes sense.
A prenuptial agreement has nothing to do with divorce, lack of trust in one’s spouse, or the greedy desire of one spouse to keep the bulk of the money. There are many reasons to sign a prenuptial agreement, and the motivation varies a great deal. I have mentioned one reason and you have mentioned two more. You plan on signing a complete separation prenuptial agreement. There are many reasons a couple would sign such a document. One very good reason, as in your case, is that one spouse is running a business. It requires a lot of trust for the business owner to legally deed all properties to his or her spouse. In this way, the couple’s home and family belongings are protected from business creditors. Lawyers in the USA and notaires and lawyers in France and probably elsewhere would advise the couple to sign a total separation regime prenuptial agreement.
Now, a separation regime clearly and somewhat brutally states that each spouse maintains full ownership of their respective assets and debts. The wedding, and therefore the institution of marriage, does not create communal ownership.
There is a choice in the way you approach this issue:
1 – The prenuptial agreement starts by claiming separation and then lists all areas where it applies. The immediate consequence is that this weakens the document and complicates its future use.
2 – The prenuptial agreement creates a strong and universal separation with zero exceptions. It is critical to understand that the two spouses sign together for everything that needs to be communal. At the end, the same goal is reached, but this solution keeps everything clear and simple.
For example:
1 – Regardless of the prenuptial agreement, you or your spouse can go grocery shopping without thinking in terms of ownership. Here everything is shared and you do not even have to think about it.
2 – As for appliances and furniture in the home, you can either put everything in both names or buy without thinking about ownership, which means getting rid of the receipts and warranty documents once they have lapsed. In either case the end result is that it the items are communal, since it is impossible to know who bought what. Even without intentionally planning it, everyday life usually creates such situations, as people get rid of clutter without thinking who owned what.
3 – The prenuptial agreement or marital regime only comes into the picture for large purchases. In France, with real estate transactions as well as estates, the notaire quotes from the marital regime in order to secure the rights of each spouse. The clear and clean separation of a prenuptial agreement allows one to make decisions easily. As a logical consequence, you two should think about buying the family home exclusively in the name of the spouse who is not a merchant, so that no creditor can touch it. Another logical consequence is that you should think about this when you sign as the guarantor of the company’s loan with the bank, which she should not sign, thereby keeping the protection solid. At the same time, consider buying the family car in both names, or buying each spouse a car in their own name.
I always say two things regarding a total separation prenuptial agreement.
1 – There is no perfect prenuptial agreement. The agreement must be chosen according to identified needs, and the couple/family must act accordingly.
2 – The critical thing is more the coherent behavior of the couple/family throughout their life, rather than what is in the prenuptial agreement.
I would like to say in closing that the other popular prenuptial agreement is universal community, where absolutely everything is shared 50-50 – past, present and future assets and debts. People rarely talk about it, maybe because it totally complies with the romantic idea of marriage.
QUESTION
WHAT HAPPENS AT OFII DEPENDS ON IMMIGRATION STATUS
I have a question about the renewal of my titre de séjour salarié. In the list the prefecture gave me to renew my carte de séjour, one of the last things that is listed is a bilan de compétence. After doing some research, I have found that the OFII sometimes does not require this. How do you know if you need it or not? If I do have to do it, it is very expensive. … My job does not require me to do this so it means it would be up to me to pay for it. I have seen prices up to 1300 euros.
ANSWER
Before responding to your concerns, which are legitimate, I would like to remind you that the services delivered by the Office Français de l’Immigration et de l’Intégration (OFII) differ considerably depending on the wide range of situations it deals with. The minimum is that the physical exam takes place there, though for some statuses it is no longer done. At the other extreme, the OFII handles the full procedure, including the physical exam, the evaluation of French proficiency, presentation of information about France, and evaluation and information about finding jobs in France, which starts with a professional evaluation of skills, i.e. the bilan de compétence. The contrat d’intégration, spelling out the foreigner’s obligations, is signed at the end of the session, which can last half a day.
You should also be aware that the prefecture now tends to issue lists covering many different situations and even different types of carte de séjour. Whereas before their lists were cryptic, because of the language they used, now the situation is worse because they mingle almost everything, thus confusing people as to what is needed to complete the file submitted to request renewal of the carte de séjour, as well as most other procedures involving the prefecture.
When you go to the prefecture for your first appointment, they ask for the OFII documents. What is expected of you depends on your immigration status. Too often, the official at the prefecture goes down the same list you were given, and asks for documents you do not have. This can be a very unsettling moment, but most of the time the official soon realizes they are asking for the wrong things and then continues to evaluate your file. Therefore, if your immigration status did not call for a bilan de competence, you do not need one and it would be useless, counterproductive and a waste of money to have one done privately. The prefecture only cares that you followed the OFII procedure carefully.
QUESTION
AS A MARRIED WOMAN, WHAT IS MY LEGAL NAME IN FRANCE?
While in Brive in the South of France with my husband, I got a message from my son who was staying at our apartment in Paris saying that the prefecture called and said there was a problem with my visa. My son understood they wanted to put both names on my visa, but I only need to have my late husband’s last name as my legal name on my US passport. So, anticipating some serious problems, I asked my sister back in Seattle to get a copy of the death certificate of my late husband. I am afraid that I will need to show them an original document with a seal. The states are so afraid of identity fraud that they make records difficult to access and she might not be able to get it.
Is it possible to convey to them that my last name is the one on my passport and leave it at that? What’s wrong with these people? Can’t they accept that a passport is an official legal document, which should not be questioned?
ANSWER
Many issues are being addressed here, in what seems to be just a last name issue. Let’s start with the obvious: France fully recognizes the validity of your passport. Problems concerning the last name of a foreigner never have to do with the validity of the document. No one is trying to change it, since in effect it actually belongs to the US government.
What is being questioned is whether you have the right in France to use the last name given in your passport. Clearly you have this right in the USA, but proving that you have the same right in France is a truly complex issue, as the laws in the two countries are quite different.
In the USA, there are no legal limits on the choice of first name for a child, and it is very easy to legally change one’s last name.
In France, the choice of first name used to be very strictly regulated, and changing one’s last name is still virtually impossible. For example, on May 5, 2000, the French Court of Appeal in Rennes ruled that a girl could be named Megane Renaud after the state had refused to accept the parents’ choice, saying it was in the best interest of the child because of possible confusion with the Renault Megane car model. This was the first time the state had lost such a legal battle.
As for last name, in France you will die with the last name you were born with, legally speaking. While a married woman has the right to take her husband’s name, is just a convention that French law accepted; centuries of tradition had made it pretty much mandatory for everyday life.
That explains what you are starting with from the French side. The prefecture evidently got your birth certificate, which shows that you were born with a different name than the one you now use. The prefecture also has your marriage license and current husband’s birth certificate, and his name is not the one you are currently using. According to French law and logic, two questions are raised:
1 – Did you ever have the right to use this name (and how did you get it)?
2 – Assuming the answer to the first part is yes, does that right supersede the French right to only use either the birth name or the married name?
Those two questions are very serious, as the state controls the right to use someone else’s name. I am sure that when the person finished processing your file in the back office of the prefecture, the software blocked. This explains the call your son received.
The first question is easy to answer on the legal level: you are the widow of your late husband, not a divorcee, and hence there is no need to seek an ex-husband’s approval for you to maintain your current usage, which clearly you continued after your husband’s death. Thus the marriage license and late husband’s death certificate, from your previous marriage, should satisfy the French authorities that it is lawful usage.
The second question has no written solution defined in the books. I can easily imagine that after hours trying to grasp the question and to find the answer, they could come up with this kind of solution:
First, your US passport gives your deceased husband’s name as the lawful one according to US law.
Second, you had the right to use his name for a long time and you chose to continue doing so after his death.
Third, your current husband does not seem offended by your choice, since he accompanied you to the prefecture and acted as if it were a normal situation.
Therefore you should write a letter explaining your choice to keep your late husband’s last name, and your current husband should also sign, in handwriting and under oath, with some sort of notarized procedure, stating that he fully accepts the situation and does not hold it against you.
If you show up with all this even before they ask for anything more, it should help them accept the situation faster and you should be done with it. Once you have a French ID, as you will have when you get a carte de séjour with that name, you should not have much difficulty in France as regards this situation.
DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.