Spousal or partner maintenance/ alimony
Spousal maintenance is a financial contribution owed to a spouse after divorce when they cannot immediately support themselves, or where there is a large gap in earnings between parties.
When is spousal maintenance owed?
The law is applicable to all marriages and civil partnerships, but not if parties only co-habit.
How is spousal maintenance/ alimony calculated?
Spousal maintenance is based on two factors: the need for financial support and the ability of the other spouse to pay a contribution.
It is not compulsory to ask for or receive spousal maintenance. It is not uncommon for spouses to renounce their rights to maintenance upon divorce, as many young couples have equivalent incomes or do not want support from their ex-partner.
However, if one partner has taken a step back from their career, for example to have children, then spousal support may be necessary. The need for spousal maintenance is based on the spendable income of both partners during the marriage. If you had a high income, a higher amount of support will be necessary to continue the same standard of living after divorce. Any earnings of the party requesting maintenance are subtracted from the amount needed to equal this standard of living.
The need for maintenance is then off-set against the ability of the other party to pay this amount. Many factors can be taken into account when calculating maintenance. For example:
- Is the spouse asking for support able to supplement their income by finding a (better) job or working more hours?
- Will the spouse asking for support receive marital property and funds from the divorce?
- What reasonable costs may the paying partner subtract?
- How many marital debts are being taken over by the paying partner?
- Who is paying the mortgage on the marital home and for how long?
There are many variables that may or may not be taken into account and maintenance issues often lead to protracted litigation.
On January 1st, 2020 new legislation will come into force limiting the period for maintenance.
Under the old rules, if parties were married for less than five years they had no children, the maintenance obligation is equal to the length of the marriage. So, if parties have been married for two years and three months, maintenance is owed for 27 months from the date of divorce. In all other cases the maintenance obligation was 12 years. If a child is born, 12 years of maintenance is owed, even if the marriage itself only lasted a few months.
The old rules remain valid for all divorce petitions brought before 2020. This is also the case if you apply to revise the maintenance sum.
New rules in 2020
The standard maximum term for spousal alimony has been reduced from 12 years to 5 years in 2020. The maintenance term is set at half the length of the marriage, with a maximum of five years in total. But, there are a few exceptions to the five year rule:
- If your children are younger than 12 years of age, then spousal alimony/ maintenance continues until your youngest child has reached the age of 12;
- When you have been married for over 15 years and the spouse eligible for maintenance is within 10 years of official state pensionable age, then spousal alimony/ maintenance is extended, until that spouse reaches pensionable age.
- When you have been married for over 15 years and the spouse eligible for maintenance was born before the 1st of January 1970, then they will receive 10 years instead of 5 years maintenance. Eventually this exception will be phased out in favour of the second exception.
Read more details on the new legislation here.
Other influences on the maintenance period
There are also other factors that may extend or reduce the maintenance period:
- Spouses can agree on a shorter or longer maintenance period between themselves as part of the divorce settlement. Particularly high net worth individuals may agree on a longer period to settle other disputes or buy off maintenance with a lump sum.
- The maintenance obligation ceases immediately if the spouse receiving maintenance remarries, enters into a civil partnership or starts to co-habit with a new partner. However, it is up to the maintenance payer to prove co-habitation. If the other party denies living together, then difficulties arise. Often only a costly private detective can provide sufficient evidence in a court of law to officially terminate maintenance.
- The court limits the maintenance period because a spouse is deemed to be able to financially support themselves within the maintenance period.
- Under exceptional circumstances, a spouse may apply for an extension of the maintenance period. This may become more relevant after 2020 as the basic maintenance period will mostly be shorter. Someone with a serious handicap who is not able to achieve a basic standard of living without continued support is one example. A request for extension must be put to the courts within three months after the normal maintenance period has ended.
My spouse has moved to or from The Netherlands and wants maintenance
If your spouse moves to the Netherlands after divorce, the Dutch rules on maintenance will apply. Therefore it is important to seek legal representation at an early stage to ascertain your rights.
When your spouse moves away from The Netherlands, there may be grounds to petition for a revision of maintenance. Your spouse’s financial situation may have changed or you may not be able to profit form the same tax deductions.
My spouse has moved to The Netherlands and won’t pay maintenance
If you already have a court order in your own country, you can apply to the authorities in your country to collect your maintenance in The Netherlands. There are international arrangements and treaties in place guaranteeing the collection of maintenance. If your country is a signatory, then the authorities in your country will contact the Dutch authorities for you. The Dutch authorities will then take the necessary action free of charge.
If you want to apply for maintenance in The Netherlands, then you will need a lawyer Your lawyer will file a petition for you with the Dutch courts. You will have to prove that you are in need of maintenance in the petition.
What if financial circumstances change?
In most cases, you can petition the courts for a revision of maintenance based on a change of circumstances. Some examples:
- One party has lost lost their job and is no longer able to make payments;
- The party receiving maintenance now has substantially more income.
You can contractually limit the circumstances in which you can apply for a revision when negotiating your divorce. Even so, if the change is drastic enough, there may still be grounds for revision.
Please also note the changes to Dutch tax legislation in the coming years that may affect your ability to pay maintenance. Read more here.
Maintenance is indexed in January of each year with a percentage based on inflation. Unless you specifically agree otherwise, indexation is always applicable.
Is maintenance taxable or tax deductible?
In The Netherlands spousal maintenance is taxed as income for the receiving party. Maintenance paid in The Netherlands is fully tax deductible if you owe tax in The Netherlands.
For more information on spousal maintenance, please contact us.