Spousal Maintenance: Everything You Need to Know
Spousal maintenance is a financial obligation that may arise after a divorce, whereby one former spouse contributes to the maintenance of the other former spouse. This obligation applies when one of the partners has insufficient income of his or her own to provide for his or her maintenance. In this comprehensive article, we discuss all the important aspects of spousal maintenance, from the conditions and calculation to the duration and termination of the obligation.
What Is Spousal Maintenance?
Spousal maintenance is a monthly contribution that one former spouse pays to the other to contribute to his or her maintenance. After a divorce, the legal obligation to provide for each other financially remains, even though the partners are no longer married or registered partners. The purpose of spousal maintenance is to ensure that the financially weaker party can provide for his or her basic needs after the divorce.
When Is Spousal Maintenance Mandatory?
Spousal maintenance does not always apply, but an obligation may arise in the following situations:
- Insufficient income: The receiving former spouse does not have sufficient income of his or her own to provide for his or her maintenance, and it cannot be expected that this partner will generate sufficient income quickly.
- Capacity to pay of the paying former spouse: The former spouse who must pay maintenance has sufficient financial means (capacity to pay) to meet this obligation.
- No waiver of maintenance: No waiver of the right to spousal maintenance has been made in the divorce documents.
The right to spousal maintenance can be excluded by mutual agreement between the partners. This must then be clearly recorded in the divorce settlement agreement or the prenuptial agreement.
How Is Spousal Maintenance Calculated?
The amount of spousal maintenance is determined on the basis of the needs of the recipient and the capacity to pay of the paying partner. The following factors play a role:
- Needs of the recipient: This is calculated on the basis of the standard of living during the marriage or registered partnership. The receiving former spouse should be able to continue to maintain the same standard of living as before the divorce, as far as possible. This calculation takes into account fixed expenses, income and other expenditure.
- Capacity to pay of the paying partner: This is the amount the paying former spouse can spare after deduction of his or her own costs and expenses, such as housing costs, healthcare costs and any child maintenance. The paying former spouse is not required to pay more than he or she can financially afford.
The calculation of spousal maintenance can be complicated because many factors are involved, including the incomes of both parties, housing costs, other obligations and special circumstances. A lawyer can assist with a tailored maintenance calculation.
Duration of Spousal Maintenance
Since 1 January 2020, the legislation regarding the duration of spousal maintenance has changed. The duration of the maintenance obligation is now shorter in most cases than before. The current rules are as follows:
Maximum duration of 5 years: In most cases, the maintenance period is a maximum of five years. This applies to marriages or registered partnerships that were terminated after 1 January 2020.
Shorter marriage (less than 10 years): If the marriage or registered partnership lasted less than 10 years, the maintenance obligation is half the duration of the marriage or registered partnership. For example: for a marriage of 6 years, a maintenance obligation of 3 years applies.
Exceptions:
- Young children: If there are joint children and the youngest child is not yet 12 years old, the maintenance obligation continues until the youngest child turns 12.
- Long marriage and state pension age: If the marriage lasted longer than 15 years and the recipient will reach the state pension age within 10 years, the maintenance continues until the recipient reaches the state pension age.
- Older partner (born before 1970): If the recipient was born before 1970 and the marriage lasted longer than 15 years, the maintenance obligation is 10 years instead of 5 years.
Termination of Spousal Maintenance
The maintenance obligation ends automatically if:
- The former spouse receiving maintenance remarries, enters into a registered partnership or begins cohabiting as if married.
- The maintenance recipient otherwise obtains sufficient income to provide for his or her own maintenance independently.
- The maximum term for the maintenance has expired.
- One of the former spouses passes away.
In some cases, the maintenance obligation may end earlier if the financial situation of the maintenance recipient changes, for example through a higher income or the acquisition of assets.
Modifying Spousal Maintenance
Circumstances may arise that make the previously determined maintenance no longer appropriate. Both the maintenance recipient and the maintenance payer may in that case submit a request to modify the maintenance. This may occur, for example, when:
- The income of one of the former spouses changes significantly, for example through loss of employment or promotion.
- The paying former spouse remarries or cohabits and thereby incurs higher costs.
- The receiving former spouse cohabits with a new partner.
- The cost of living has changed significantly, for example due to health reasons.
A modification of spousal maintenance can be arranged through mutual agreement, but if this is not possible, the court can make a decision on the matter.
What Happens If the Maintenance Is Not Paid?
If the maintenance debtor refuses to pay, the maintenance creditor can engage the National Collection Agency for Maintenance Contributions (LBIO). This agency can collect the maintenance from the non-paying former spouse. The LBIO can attach wages or take other measures to ensure that the maintenance is paid.
Spousal Maintenance and Tax
Spousal maintenance is tax-deductible for the paying partner and taxable for the receiving partner. This means the paying former spouse can deduct the maintenance from his or her taxable income, while the receiving former spouse must declare the maintenance received as income in the tax return.
Conclusion
Spousal maintenance is an important and complex subject in divorces. It is essential to make good arrangements regarding the amount and duration of the maintenance, and to record these arrangements clearly in the divorce settlement agreement. At Arslan Advocaten, we offer expert advice and support in determining, modifying or terminating spousal maintenance. Do you have questions about your maintenance rights or obligations? Contact us for a no-obligation consultation.