16 July 2020

The need for partner alimony under the microscope

By Dylan Bertsch

If you have previously dealt with the phenomenon of partner alimony (partner maintenance), you know what is meant by the terms "needs", "neediness", "financial capacity" and "comparison of financial capacity".

These are the pillars of the maintenance calculation. This blog focuses on the “needs” of the maintenance recipient.

What are needs?

Need is related to the prosperity of the marriage. What came in and what went out? What was the family’s level of prosperity? If, based on their own income (or income that they are supposed to generate), the maintenance recipient cannot continue with the same wealth after divorce, he or she needs partner alimony.

The guiding principle is therefore not the minimum wage, the social assistance standard or the wealth prior to the marriage. Alimony payers used to seek links with average spending patterns published by Nibud or on other websites. It doesn’t work like that.

The assessment framework is what the maintenance recipient was used to during the marriage, not the welfare level of the average Dutch person.

How is need calculated?

That is precisely the crux. There are two methods.

Method 1.

The maintenance recipient makes an overview of his or her expected monthly costs after divorce, based on the prosperity of the marriage. The maintenance payer comments per cost item.

Advantage: customisation is possible.
Disadvantage: a lengthy exercise per cost item that has an escalating effect.

Method 2.

Application of the so-called 60% rule. The need is set at 60% of the net family income minus the costs of the children. 60% instead of 50% because life is more expensive alone than together.

Advantage: simplicity, less chance of extra disputes between ex-spouses.
Disadvantage: no customisation.

Current situation?

According to the highest court in the land, the Supreme Court of the Netherlands, the main rule should still be method 1. Until a few years ago, this was also the case in the judiciary. So “No application of the 60% rule, unless…”.

I see a change in the judiciary. The judiciary prefers – logically – method 2.

I noted previously that the starting point is “application of the 60% rule, unless…”. This means that it is up to the maintenance payer to demonstrate that and explain why the 60% rule is unreasonable in his or her case. For example, because s/he has spent a substantial part of the net family income on their own expensive hobby, or has invested in their own equity. The maintenance recipient has not benefited from this. That part of the net family income was therefore not part of the wealth of the maintenance recipient.

So the roles appear to be reversed. Where previously the maintenance recipient had to demonstrate that the 60% rule would suffice in his or her case (because simple, not atypical, customisation is not necessary), now the maintenance payer has to come up with arguments to break the 60% rule.

What now?

Both methods will continue to be used in case law. So it depends on the facts and circumstances of your situation which way it goes. Is your situation atypical? Is there a very high family income? Have you enjoyed a lavish lifestyle or have you saved? Is a lot of money spent on a specific goal? The ins and outs of your specific situation remain important for determining the need.

If you would like advice on this subject, please do not hesitate to contact me.

Dylan Bertsch

Dylan Bertsch

Lawyer and mediator

Dylan Bertsch specializes in family law and is a committed and passionate lawyer and mediator.

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