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.
At the moment the law states that if parties have been married for less than five years and no children have been born of the marriage, the 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 is currently 12 years. If a child is born, 12 years of maintenance is owed, even if the marriage itself only lasted a few months.
There is currently legislation being considered to shorten the maintenance period for former partners. However, this is a contentious issue in Dutch politics and it is not likely there will be any legislation passed in the near future negating previous maintenance decisions. The Dutch courts currently do not accept arguments anticipating a shorter maintenance period.
New rules expected in 2020
Recently, a new law has been passed that will shorten the maintenance period from the current maximum of 12 years. Read more here.
Exceptions to the period maintenance is owed
There are exceptions to the rule:
- 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.
- Under exceptional circumstances, a spouse may apply for an extension of the maintenance period. However, there are only a few cases in which a longer maintenance period been accepted by the courts. 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, as your spouse’s financial situation may have changed.
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 and they will take the necessary action free of charge.
If you want to apply for maintenance in The Netherlands, then you will need a lawyer to file a petition for you. You will also have to prove that you are in need of maintenance.
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.
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.