29 August 2010

Spousal alimony: when the ex moves in with the new partner

By Dylan Bertsch

Many of those who pay alimony to an ex-spouse hope that their obligation to do so would stop, once the ex would move in with a new partner.

However, things are not as obvious as they may seem…


Article 160 of the Dutch Civil Code, Book I, states that the duty to pay spousal alimony for the average duration of  twelve years ends:
• should the ex re-marry;
• should the ex live with a new partner, under the covenant of a registered partnership;
• should the ex live with a new partner, as if they were married or as if they had signed a registered partnership.

The first two scenarios are clear and so is the third one, as long as the ex-spouse admits living in a new relationship, as meant by article 160 . However, things can get messy, if the new relationship is denied by the receiving ex-spouse for the sake of ongoing alimony payments. This is why it is essential that ex-spouses-to-be make sound agreements on the circumstances that may prematurely end spousal alimony payments. Doing so will not only prevent potential conflict-material from unfolding in an already tense situation, but it can actually bring advantages to both parties.

Score a win – win

A possible agreement between divorcing spouses could be that alimony payments would go on for the duration of six months after the receiving spouse has moved in with his or her new partner. The advantage to the receiving ex-spouse would be that he or she could ‘test’ the new relationship in total openness and honesty, giving it a try without the looming doom of losing the partner alimony, should ‘things’ be found out. The advantage to the paying ex-spouse would be that things would have a better chance to work out well, since his or her ex can start a new relationship without the risk of impending financial loss.

Avoid the subject and prepare for pain

If no previous agreements were made, things can get really messy. The receiving ex-spouse may deny living in a new relationship, leaving the burden of proof on the paying ex-spouse. The lawmaker’s wording of ‘living together as if they were married’ is not obvious to interpret, since all of the following must apply, before a judge could rule in favour of the paying ex-spouse wanting to end his or her alimony obligations.
The receiving ex-spouse must have:

1) a long term relationship with the new partner, 2) based on effective attachment, 3) leading to the partners caring and providing for each other’s needs on a regular basis, 4) whilst living together, 5) within a joint household.

Now, how do you credibly  prove all of the above ?!

Hiring a private eye?

Some paying ex-spouses consider hiring a detective, to bring evidence of circumstances that might lead to a termination of their payment obligations towards their former spouse. However, it is rather difficult to prove anything that goes beyond the fact that the two scrutinised parties do have a relationship and that they do ‘fun things’ together. Especially, ‘caring and providing for each other on a regular basis, within the joint household ‘ is a provision difficult to prove. And, last but not least, a detective can really not say much on the durability of an effective relationship unfolding between the parties under observation.

Get reliable advice

…and making sound agreements is definitely  the better option. As always, it saves time, money and energy, preserving a sense of dignity and being in-charge, whatever the future may bring.

If any of the above have raised questions of concerns with you, please contact our experts in family law.

Dylan Bertsch

Dylan Bertsch

Lawyer and mediator

Dylan is a committed and passionate lawyer who is specialised in family law.

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