We regularly see maintenance cases where one spouse works significantly less than the other. This often has obvious reasons, such as child care. What if the children are no longer an issue and your ex-spouse is still not earning more than a minimum wage? Do you have to continue paying maintenance? Can you request lower maintenance in The Netherlands if your ex-spouse is refusing to make use or their brain and does not want to work?
It’s complicated
The answer is yes and no.
The Dutch courts expect more and more that you make use of your earning capacity after the divorce. Unless you have a handicap or illness preventing you taking part in the labour market, you are expected to get a job or expand your hours to a reasonable level. This goes for both spouses, not only the recipient but also the party paying maintenance.
Education level and work experience
Making use of earning capacity is also connected to education. Can you expect someone with only secondary education to reach the salary of a CEO? No, you cannot. However, you can expect someone to take on appropriate employment at a level equal to before the marriage. So if an ex-spouse has a degree in accounting, then they are expected to look for jobs appropriate to that level.
In some cases where a spouse has never worked outside of the home during a long marriage, it would be unrealistic to force them back into the employment process. If a spouse has not held a job in 25 years, it would be difficult to expect someone to transition back into working life easily.
However, the labour market is currently favourable, which means there are many opportunities to find work. This is regularly taken into account.
Your ex-partner finds a new job
Is this going to make a big difference to the amount of maintenance owed? Not always.
It really depends on the relative earnings of both ex-spouses. For example, if one spouse has a € 200 K salary and the other works 24 hours a week at minimum wage level, then demanding they work 40 hours a week will not make a material difference to the maintenance calculation. The deciding factor is the standard of living during the marriage. With a minimum wage you will never be able to attain that standard without additional maintenance. Therefore the other spouse will continue paying maintenance.
Often, parents (mainly mothers) returning to the work process are actually penalised when their work income goes up as they lose government benefits and owe more tax. More hours can even mean less money.
My ex-partner refuses to find any form of employment
So, what will the courts do if someone really just does not want to work? Usually the courts will reduce maintenance over time to encourage the recipient to start becoming independent. For example, the court may rule that after year one, the maintenance will gradually decrease each year to encourage the return to the workplace.
A previous case from our practice illustrates this. After two years of separation the ex-spouse still had not sought employment. She declared in court that she needed at least three years to pursue a writing project before she could start earning again. The court ruled that she had a year to establish herself and reduced the maintenance amount from year 2 onwards.
Limiting the maintenance term
The court may also shorten the maintenance term altogether. However, shortening the maintenance term does not happen often as this decision cannot be reversed at a later date. By gradually lowering the amount of maintenance, the court allows for the receiving party to request adjustment if they really cannot find employment. For example, if an economic crisis or pandemic gets in the way.
Do not expect the courts to minimise maintenance immediately. Also bear in mind that you have to actually request the court to reduce maintenance over time. Otherwise the court sets maintenance based on the situation when the divorce is heard and that is that.
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In order to determine what maintenance is reasonable in your circumstances, please feel free to contact us for a consultation.
