The Dutch law recognizes two kinds of maintenance: child maintenance and spousal maintenance.
Both parents are financially responsible for their children. Making a child-maintenance arrangement requires tailored expertise.
Broadly speaking, child maintenance is calculated by establishing or agreeing the needs of the child on the one hand, and what the spouses can afford (capacity to pay) on the other.
The child’s needs are typically calculated by referring to the so-called Nibud standards (the Dutch National Institute for Family Finance Information). The calculation of the children’s needs is based on the net family income, the number of children in the family, and their ages. In addition, we examine the financial capacity of both parents in order to determine the share of each of them in the child maintenance arrangement. Finally, the financial capacity of the person liable to pay maintenance is relevant for assessing the extent to which they can pay their share in total child maintenance.
Marriage creates a bond of solidarity between the spouses which constitutes the foundation for the duty to support each other after a divorce. The Dutch maintenance law is in full change.
At present, there is a statutory entitlement to spousal maintenance during 12 years after the dissolution of the marriage. This 12-year period is meant to enable the person entitled to receive maintenance to provide for their own cost of living. In highly exceptional cases, this term may be extended by the court.
Between future ex-spouses, there often exists a great lack of clarity concerning the legal aspects of spousal maintenance. The amount of spousal maintenance depends on the needs of the person entitled to receive maintenance and on the capacity to pay of the person obliged to pay maintenance.
The living standard of the spouses during the marriage is typically used as a guideline by the courts for determining the needs of the person entitled to spousal maintenance. It not only includes the income of both spouses, but also the level of expenditure they were used to. Establishing the needs of the spouses involves tailored expertise. The courts apply the following rule of thumb: the needs are equal to 60% of the net family income, less expenses for the children. This rule of thumb is to be applied only when modal incomes are involved. In addition, in almost all situations the person entitled to spousal maintenance will have to establish a list of needs, which can be used as a basis for charting the costs of the person who is entitled to spousal maintenance.
The recipient of spousal maintenance has to pay income tax on this amount. In other words, this is a gross amount. The person liable to pay spousal maintenance can deduct these amounts for tax purposes. For him or her, the payment of spousal maintenance is considered a personal-allowance item.
If the parties’ personal or financial situations change, they can apply to the court to change the amount of maintenance (child and/or spousal maintenance). The court assesses whether there has been a change in circumstances and may rule that the maintenance is to be adjusted.
It is possible to buy out spousal maintenance, in which case the person entitled to maintenance will receive a lump sum. Buying out spousal maintenance is advised only if it is accompanied by excellent legal and fiscal counselling. It goes without saying that the specific situation will also have to be taken into consideration in this case.
Advice for family law in the Netherlands
For advice on divorce and family law in the Netherlands, please contact Chantal van Baalen-van IJzendoorn at:
De Ruijterkade 143
1011 AC Amsterdam
Tel: +31 20 261 0002