If you are married or have entered into a registered partnership, you are liable to pay spousal support to each other in the event of a separation. In this blog I explain how the Dutch Courts determines spousal support and to what extent the obligation to work (more) can be imposed on an ex-partner.
Determining the so-called ‘marital need’
In spousal support cases, the court must first determine what the marriage-related need is for both parties. The main rule is to look at the total net family income minus any costs for the children. From this amount, 60% is then taken, the so-called Court standard (in Dutch: ‘Hof-norm’). This 60% is the amount that both partners need per person in order to have the same prosperity after the divorce as during the marriage.
If one of the partners believes that the actual marital need is higher or lower than the Hof-norm, this can be demonstrated by means of a list of needs with documentary evidence. This is not always easy. This is evident, among other things, from previous decisions of the Court of Appeal of Arnhem-Leeuwarden (3 September 2019, ECLI:NL:GHARL:2019:7121) and the Court of Appeal of ‘s-Hertogenbosch (5 December 2019, ECLI:NL:GHSHE:2019:4408). An appeal to deviate from the Hof-norm must be clearly articulated and supported by documentary evidence.
Is there a need for a contribution from the ex-partner?
Once it is clear what the monthly marital need is, the next question is whether both partners can provide for this monthly amount themselves. When one of the partners has insufficient income from work and/or assets, you speak of ‘neediness’ of that partner.
If both partners can support themselves after the divorce with income from work and/or assets, the court will not impose spousal support.
Obligation to work (more)?
When determining whether an ex-partner is in need of support, the question of whether this partner should reasonably be considered capable of working more also arises. This is called the earning capacity. The judge will assess this based on all the circumstances of the case. Consideration will be given, among other things, to age, employment history, level of education and the question whether young children are being taken care of by that partner. Of course, there may be good reasons why the partner in need for support, for example, starts or continues to work part-time after divorce.
In a recent judgment of the Court of Appeal of ‘s-Hertogenbosch (22 July 2021, ECLI:NL:GHSHE:2021:2303) the judge considered that the woman had an earning capacity of EUR 21,436 gross per year in view of her age and employment history. This earning capacity was then taken into account when determining whether the ex-partner was obliged to pay spousal support.
The amount of the earning capacity of a maintenance creditor depends on all the circumstances of the case.
By establishing a certain earning capacity - irrespective of whether the maintenance creditor actually fulfills that earning capacity in practice - an obligation to work can in fact be imposed by a judge. This is because the amount of earning capacity is taken into account when determining any additional amount of spousal support.
Reduction of spousal support
It may thus be the case that the judge considers that the maintenance creditor is expected to generate a certain amount of income on his/her own per month. A judge may also decide that the maintenance creditor will initially receive a higher amount of spousal support, but in time receive less because he/she is expected to generate more income him/herself in the future. When there is no demonstrable and/or valid reason why the ex-partner cannot support himself/herself after the divorce, with a reduction in spousal support over time the court can in fact impose an obligation to work (more).
Support capacity of a person liable for spousal support
aA not unimportant aspect to mention is that the ex-partner who is obliged to contribute to the maintenance of the other partner, must have the financial capacity to do so. Simply put, this partner must have enough income to support him/herself, take his/her share of any child support costs and also have room to support the other partner financially. Whether this is the case a lawyer can calculate for you.
More income for ex-partner?
When an ex-partner receiving spousal support starts working more, it means that that partner’s neediness is reduced. This is because more of their own income is generated. When this is the case, the partner paying spousal support has the right to apply to the court for a reduction in spousal support. This right also applies when the income situation of the obligated partner changes, resulting in a reduced ability to pay spousal support.
Duration of the obligation to pay alimony
For an explanation of the duration of the partner maintenance obligation according to Dutch law, I refer you to another blog on our website.
As you can read, determining the amount and duration of spousal support is not easy. The question of whether an ex-partner is obliged to work (more) has to be answered per situation. There are various circumstances that must be taken into account or that can be invoked in court.
Please feel free to contact me if you would like to explore the possibilities of determining or modifying spousal support.