12 February 2024

Spousal maintenance and earning capacity

By Lise-Milou Lagerwerf

After divorcing, you may have an obligation to pay spousal maintenance to your ex-spouse or you may be entitled to receive a contribution.

Part of the court’s assessment of whether you must pay or can receive a contribution is the extent to which the former spouse who is entitled to receive maintenance can provide for their own needs. In other words, whether this former spouse has earning capacity.

On the basis of recent case law, this blog discusses what to consider when dealing with the topic of earning capacity in spousal maintenance.

Calculation method for spousal maintenance

Once the requirements of the maintenance creditor have been determined, that spouse’s income is deducted from their needs. Initially, this is about the income that this partner actually has. However, it can also be argued by the other partner that the maintenance recipient is capable of working, or if the former partner is already working, that they can work longer hours. According to the maintenance debtor, the recipient is then able to meet their own needs. If the court agrees, a notional income is taken into account after income is deducted from needs.

Sitting on your hands is no longer an option

In the past, case law was reluctant to calculate a notional income on the part of the maintenance recipient.

Recently, however, it has taken a different line: the maintenance recipient is expected to make greater efforts to work or to work longer hours. Case law more often assumes earning capacity on the part of the maintenance creditor.

Even in cases where there was a traditional marriage and one of the partners had not worked for 30 years. The court has ruled that this partner is deemed to be fully self-supporting 3 years after the divorce.[1]

Similarly, the argument that a partner is unable to work for medical reasons is no longer sufficient. Unless this is properly substantiated by medical evidence. In the absence of this evidence, earning capacity is generally assumed.[2]

In short, case law expects the maintenance recipient to make increasing efforts to meet their own needs. The maintenance recipient can no longer sit on their hands, but is expected to take action.

More information

If you would like more information about spousal maintenance and earning capacity, or have another legal question, please do not hesitate to contact us.

[1] Court of Limburg 19 May 2023, ECLI:NL:RBLIM:2023:3530.
[2] Court of Amsterdam 23 May 2023, ECLI:NL:RBAMS:2023:3431.

Lise-Milou Lagerwerf

Lise-Milou Lagerwerf

Lawyer

Lise-Milou specialises in family law. Her focus is on (international) divorces.

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