Whether you are obliged to pay spousal maintenance (partneralimentatie) to a former spouse, how much you need to pay and for how long are all matters that depend on the situation at the time when the maintenance order is made. The problem is that your situation is unlikely to remain the same forever. The level of your income or capital (or your former spouse’s income or capital) may change, or the payee, i.e. the person receiving the maintenance, may remarry. A change in your circumstances may form grounds for lowering (or raising) your spousal maintenance payments – or indeed ending them altogether.
Adjusting the amount of maintenance
Clearly, it is not the idea that the level of spousal maintenance should vary from one month to another. Not every change in your circumstances constitutes grounds for adjusting the level of spousal maintenance. Given that the possibility of adjusting the level of maintenance depends greatly on all the relevant facts and circumstances, I cannot quote an exhaustive list of factors meriting an adjustment. What I can do, however, is to list a number of situations in which it is worth applying for a review of the level of spousal maintenance. These are as follows:
- a change in the income earned by one of the former spouses;
- a change in the marital status of one of the former spouses;
- a change in the capital of one of the former spouses;
- a change in the needs of the payee;
- a change in your own income resulting from a change in the law
- the fact that one of the former spouses is now cohabiting again
- a new maintenance liability (for example, due to the birth of a child);
- new debt-service obligations;
- one of the former spouses fails to comply with an obligation to use their best endeavours.
The latter point needs a bit of explaining. If you are paying maintenance to your former spouse, he or she is expected to do their best to support themselves. If your former spouse fails to do so, or is unable to prove that he or she is making every effort to do so, the court may decide that he or she is not using their best endeavours. The court may attach certain consequences to this decision: it may adjust the level of spousal maintenance or shorten the period during which maintenance is due. In other words, a failure to make a proper effort may also form grounds for adjusting the level of maintenance. This is something that people tend to forget.
Assessing a request to adjust the level of maintenance
The court assesses the merits of each individual case before deciding whether the change in circumstances merits an adjustment in the level (or duration) of spousal maintenance. For example, if you decide to reduce your workload so that you do not have to pay as much spousal maintenance, the court will view such a decision as a leading to a ‘culpable’ or an ‘avoidable’ reduction in your income. The same applies to a decision to reduce your working hours on the assumption that your former spouse will make up the shortfall in your income. This type of change will not lead to a decrease – or an increase – in spousal maintenance. In other words, it is not simply a matter of there being a material change in your or your former spouse’s circumstances. The court also looks at the reasons for the change.
Adjusting the duration of maintenance
You should also remember that it is not only the amount of maintenance that may be adjusted. There may also be grounds for adjusting the duration of the maintenance payments. The maximum period during which maintenance payments may be made is 12 years, starting from the date on which the divorce decree is registered in the civil registry.
I am frequently asked whether the maximum duration of maintenance payments has now been reduced as a result of the enactment of the Spousal Maintenance (Review) Act (Wet herziening partneralimentatie). The answer is: no. The new act has yet to take effect. Although the bill in question has been passed by the Lower House of parliament, it is still being debated in the Upper House.
Hurtful behaviour may also be a ground for adjusting the level of maintenance
In addition to the grounds listed above, ‘hurtful behaviour’ on the part of the payee may also be a reason for adjusting the level of spousal maintenance. Such behaviour includes harassment, physical violence and false accusations to a degree such that it is unreasonable to expect the payer to continue to support the payee.
Finding out about a change in circumstances
How can you find out whether your former spouse’s circumstances have changed? Obviously, it would be handy if your divorce settlement contained a clause requiring you to notify each other about a change in your situation. Unfortunately, this is not usually the case. If you have not made any specific arrangements to this effect, the law states that you and your former spouse are obliged to inform each other of any change in your circumstances. If you fail to do so and your former spouse finds out that your circumstances have changed, the level of maintenance may be adjusted retroactively.
If you suspect that your former spouse has failed to inform you about a change in their circumstances, you can ask them to let you have a copy of their income tax return, for example. If your former spouse refuses to do so, your best advice is to get in touch with us and we’ll take it from there.
Applying for an adjustment in the level of maintenance
Let us know if you feel that you are paying too much spousal maintenance to your former spouse – or indeed if you are concerned that your former spouse is not paying you enough maintenance. We’ll be happy to assess your chances of making a successful application for an adjustment in the level of maintenance. If we conclude that such an application is indeed likely to be granted, you can either try and reach a mutually acceptable arrangement in consultation with your former spouse or, if this does not work, you can formally request the court to adjust the level of maintenance.
More information on spousal maintenance?
If you’d like more information on spousal maintenance, or if you have other queries on a matter concerning family law, feel free to get in touch either with me or with one of my family law colleagues at RWV.
Originally this article was written by Marjolijn Boezaard-van Diepen (no longer employed at RWV Advocaten)