The non-modification clause in child support
In our practice, it often happens that parents make an agreement about child support for now and for the future in the event of a (real) divorce. Sometimes parents want to stipulate that the child support cannot be changed in the future. This is also called a non-modification clause. The question is whether parents can agree that the agreed child support cannot be changed in the future. On Friday, November 1, 2019, the Supreme Court answer given to the question whether a non-modification clause applies with regard to child support.
What was going on?
In this case, the parents had made an agreement about the amount of child support and determined that this support could not be changed in the future if circumstances changed. Nevertheless, the woman requested the court to change the child support.
Because opinions in literature and case law differ on the validity of a non-modification clause, the court referred this question to the Supreme Court. This is called a preliminary question.
The Supreme Court considers that parents are obliged to provide for the costs of care and upbringing of their minor children according to their ability to pay and that this obligation continues after the divorce. If parents get divorced, they are obliged by law to draw up a parenting plan. The parenting plan records the agreements that the parents make about the costs of care and upbringing of the minor children. When making agreements about child support, parents are bound by the statutory standards.
What are the legal criteria for determining an amount of child support?
The legal criteria state that when determining child support, the parents' ability to pay (what can they afford?) and the child's needs (what does the child need?) are taken into account. The ability to pay is calculated on the basis of the parents' income and expenses. The need is based on the child's well-being during the marriage or cohabitation.
When can a child support agreement be changed or withdrawn?
Under the law, the agreement entered into by parents can be changed or withdrawn in three cases:
- If the agreement no longer meets the legal standards;
- If the agreement has not met the legal standards since it was concluded, because incorrect or incomplete information was used;
- If the agreement has been entered into with gross disregard for the legal standards.
In the case before the Supreme Court, the parents had excluded the aforementioned options in a non-modification clause.
What is the Supreme Court's response?
The Supreme Court has concluded that a non-modification clause for child support is permitted under certain conditions, namely when parents determine that child support may not be changed when the parents' ability to pay decreases. A non-modification clause may not result in child support not being changed when the parents' ability to pay increases or the child's needs increase. In other words: the child may not deteriorate.
Although the main rule is that a non-modification clause is permitted when the parents' ability to pay decreases, there are two exceptions:
- When the maintenance debtor has children with a new partner and his or her financial capacity must be divided among several children;
- When the maintenance debtor no longer has the capacity to provide for his own livelihood. If this last exception occurs, the maintenance debtor can appeal to general provisions of reasonableness and fairness.
Is a non-modification clause allowed in my situation?
Whether a non-modification clause is permitted in your situation depends on the circumstances of the case. Do you want to include a non-modification clause or does your parenting plan contain a non-modification clause and do you want to change the child support? contact with one of our lawyers. They will be happy to provide you with advice.
