20 June 2022
Is drawing up maintenance arrangements a good idea?
In this blog, we explain why it can be wise to make proper arrangements for this.
A distinction should be made between two different maintenance obligations. Maintenance for children and maintenance for spouses. Spousal maintenance is where one ex-spouse pays the other ex-spouse an amount in maintenance. Spousal maintenance only applies if the ex-spouses were either married or in a registered partnership. Ex-spouses who lived together do not qualify for spousal maintenance. Unless they have made arrangements to this effect in a notarial deed. Child maintenance is generally compulsory for minors whose parents have separated, unless the non-custodial parent does not have the financial means to pay maintenance.
Maintenance may be determined by the court or by agreement between the parties. It is advisable to have a lawyer or mediator calculate and record the amount of maintenance. That way you know that you are not paying too much or receiving too little. Even if the person paying maintenance is reluctant to pay monthly maintenance, it is a good idea to record the arrangements in writing. This makes it easier to collect child maintenance. You can of course have the arrangements drafted by GMW lawyers.
Each year in October or November, the Minister for Legal Protection (Minister voor Rechtsbescherming) determines the percentage by which maintenance should be increased, which is called indexation. In my earlier blog, I explained that maintenance should be increased by 1.9% as of 1 January 2022.
Unfortunately, in practice, many maintenance debtors are unaware of the annual increase in maintenance. For example, maintenance debtors do not receive a personal letter or notification from the government explaining that they are obliged to index maintenance.
The increase in maintenance payments is stipulated in Article 1:402a(1) of the Dutch Civil Code (Burgerlijk Wetboek). This article states that amounts of maintenance determined by court decisions or by arrangement will be automatically adjusted each year by a percentage to be determined, corresponding to the percentage difference between the wage index on 30 September of any year and the corresponding index the previous year. Which means that everyone who pays maintenance is obliged to increase the amount of maintenance he or she owes every year. This applies to both child maintenance and spousal maintenance, unless this has been excluded by the parties or the courts.
Should the maintenance recipient find that the maintenance debtor is not paying the correct indexed amounts, it is up to the maintenance recipient to inform the maintenance debtor. The maintenance debtor is obliged to pay the amount of indexed maintenance to the maintenance recipient. If the maintenance debtor fails to do so when requested by the maintenance recipient, it is up to the maintenance recipient to proceed with collection. Unpaid indexation can be collected retroactively for up to five years.
In the event that outstanding child and/or spousal maintenance is agreed upon verbally and is not recorded in writing in a court order or in an agreement, such as a parenting plan or divorce agreement, then maintenance cannot be collected.
It is therefore wise to engage the services of a lawyer or mediator in order to have the maintenance officially recorded. The lawyers at GMW can, of course, assist you with this.
Has there been a change in circumstances since the maintenance contributions were agreed? Then it is wise to get advice on whether the maintenance can be adjusted. GMW lawyers can also help you with this.
Do you need advice on calculating spousal and/or child maintenance? Do you want to draft maintenance arrangements? Or do you want advice on whether it is possible to change the amount of the maintenance? Please do not hesitate to contact me.
This weblog was written in close cooperation with Bianca Kok-Beekhuizen, a legal assistant in the family and inheritance law department.
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