Calculating spousal maintenance is notoriously difficult in The Netherlands. The working group that devises the maintenance regulations has been searching for ways to simplify the calculation for many years. The latest spousal maintenance changes for 2023 could now have a major effect on the amount of maintenance owed.
The working group has long had the wish to create a uniform calculation for both child maintenance and spousal maintenance. Up until now the two calculations were quite different and could lead to unfair results when combined.
The highest household cost for any person is often housing. Often, during a divorce, one party leaves the marital home and will have to rent accommodation. In the current market these costs can be high, but may only be temporary. Once the divorce is final and the finances are separated, they may move somewhere significantly cheaper. Up until now, the courts based their calculation on actual costs at the time of the ruling. That is, unless the courts deemed the costs presented were unreasonably high. Basing the calculation on the interim period during the divorce. the court therefore may be setting maintenance too low. Often it is too expensive for the person receiving maintenance to go back to court later to have the calculation adjusted later.
This system has been adjusted as of January 1st. In future, the courts will take into account a fictitious housing budget which amounts to 30 % of net income. The idea is that future changes in housing costs will no longer be relevant. It also discourages divorcing parties from taking on expensive temporary accommodation in order to manipulate the maintenance calculation. This change is relevant for all maintenance cases that come to court after January 1st. In cases decided before January 1st, the old rules will remain applicable unless there is a change in circumstances warranting a recalculation. In that case, the new rules will be applied.
Higher or lower housing costs?
It will now be up to the person owing maintenance to argue their case and request an exception to the fixed housing budget.
In major cities in The Netherlands, housing costs have soared in the past few years. Even simple accommodation is currently extremely expensive. However, the courts can still take into account actual housing costs in cases where higher costs are unavoidable. It is foreseeable that in such cases, the court will agree to apply the actual cost of living. It will now be up to the person owing maintenance to argue their case and request an exception to the fixed housing budget. Therefore, it is doubtful that the new rules will actually simplify the maintenance calculation or prevent disputes over the amount of maintenance owed.
But what if the actual costs are much lower than 30 %. Say for example the house the maintenance payer lives is mortgage free. In such cases, it is also possible for the court to apply the actual housing costs. However, the recommendations do state that staying temporarily in cheap or free accommodation does not affect the housing budget. So, if one of the spouses moves back in with their parents for a while, this is not likely to increase spousal maintenance. If one of the spouses moves in with somebody else (a new relationship), their new partner is expected to contribute 50 % of the living costs.
In child maintenance cases, it has been known for the courts to lower the housing budget, but mainly in cases where otherwise there would be no capacity to pay any maintenance because of the fixed 30 % housing budget.
Heath insurance is another cost of living that has been integrated into the calculation. A standard amount has been added to the basic costs of living. If a person has much higher medical insurance costs than the norm, then this will also have to be presented as a special circumstance.
The new norms also introduce a new form of income comparison, which aims to distribute maintenance more fairly so both spouses have the same net income after maintenance is paid. The actual spendable income of both spouses is compared, taking into account taxation, tax allowances and unavoidable costs/ debts.
Not as simple as it seems
Even with the proposed simplification of the calculation, each case will have to be tested individually to check if the calculation is fair. Divorce lawyers therefore do not expect these spousal maintenance changes to result in less cases in the future. Time will tell how often the courts will allow parties to deviate from the norm.
If you have any questions about spousal maintenance changes, please feel free to contact us.