Alimony
When married people separate, an obligation to pay spousal support may arise. This will be the case if one spouse earns more than the other spouse or if there is only one partner who generates income. The amount of support depends on what the person entitled to support needs (need) and what the person obliged to pay support can pay (ability to pay). The need is determined by the prosperity that was built up during the marriage. The ability to pay is calculated on the basis of standards and calculation models, as used by the court, also known as Trema standards. In general, the method of calculation is experienced as complicated. We can guide you well in drawing up the correct calculations.
Under current law, if there are no children and the marriage lasts less than five years, the maintenance period is the same as the marriage lasted. If there are children and/or the marriage lasts longer than five years, then in principle a maintenance obligation of twelve years applies. However, the maintenance period for new divorce applications will change soon.
New alimony legislation
On 21 May 2019, the Senate adopted the bill on the revision of spousal support. The adoption of this bill means that the maintenance period for spousal support will be shortened from twelve years to a maximum of five years, with a number of exceptions.
Who does the new legislation apply to?
Has the divorce petition already been filed with the court in your situation? Then the new regulations do not apply to you. The amended regulation will apply to all divorce petitions filed from 1 January 2020. All divorce petitions filed before 1 January 2020 will therefore still fall under the current regulation. Depending on your situation, it may therefore be wise to take into account the date on which the divorce petition was filed.
What will change?
Under current law, the maximum duration of spousal support is twelve years. The new legislation will shorten the duration of spousal support to a term that is half the duration of the marriage, with a maximum of five years. This means that if you have been married for eight years, the maintenance obligation will in principle last four years. The judge can determine a longer term, as long as that longer term does not exceed five years.
I have been married for 30 years, does a five-year term still apply?
If you have been married for more than fifteen years and the age of the person entitled to maintenance is a maximum of ten years lower than the AOW age, the duration of spousal maintenance is capped at ten years (the maintenance obligation ends when the person entitled to maintenance reaches the AOW age). Furthermore, maintenance recipients aged fifty and over who have been married for more than fifteen years are entitled to ten years of maintenance. This additional measure will expire seven years after it comes into effect.
We are getting divorced and have a four year old child together. What now?
Do you have a child with your spouse and is your child younger than twelve? Then the duration of spousal support will be extended. The term will be extended until the youngest child reaches the age of twelve. In the situation where your child is four years old, the duration of the spousal support obligation will therefore be eight years. It is good to realize that the new regulations only apply to spousal support. The rules for child support remain unchanged. The obligation to pay child support therefore continues until the child reaches the age of eighteen, after which an extended maintenance obligation applies for the costs of living and study until the child reaches the age of twenty-one.
The termination of spousal support after five years is of a very drastic nature for me. Can I do anything about this?
In principle, the duration of spousal support ends after the expiry of the term that is half the duration of the marriage with a maximum of five years. If the termination of spousal support is of such a drastic nature for you that unchanged maintenance of that term cannot be expected of you according to standards of reasonableness and fairness, a lawyer can submit a request to the court on your behalf to extend the duration of spousal support. This is also called the "hardship clause".
My spouse and I want to waive spousal support when we get married. Is this possible?
As under current law, it is also not possible under the new law for spouses to exclude the rules on spousal support in prenuptial agreements. You can, however, agree in the divorce that you both waive the payment (and receipt) of spousal support.
Does the maintenance obligation expire if I start living with a new partner?
The regulation included in article 1:160 Civil Code remains unchanged. This means that when the person entitled to maintenance starts living with a new partner as if they were married, the maintenance obligation lapses for the person obliged to pay maintenance.
Will the new regulations also introduce an alimony obligation for cohabitants?
Under both current and future law, there is no maintenance obligation between cohabitants. Cohabitants are free to agree on a maintenance obligation in, for example, a notarial cohabitation contract.
Beware as a future ex-spouse!
For future ex-spouses, it is advisable to make agreements in mediation or in a mutual divorce about the maintenance to be paid in order to prevent disputes at a later time. For example, there is the possibility for spouses to agree on a lump sum for the spousal maintenance. It is important to consult a specialized lawyer for this, so that the lump sum does not have any negative fiscal consequences for yourself or your possible company.
If you have any questions about current or future legislation and your specific situation, please do not hesitate to contact us contact with our office. We will be happy to answer your questions.
