10 August 2022
As a divorce lawyer, I frequently get asked whether partner maintenance needs to be paid even after retirement.
In other words, what happens if you have to pay maintenance and you reach retirement age; do you still have to keep paying maintenance or can you stop doing so? In this blog post I will give you my advice on retirement and maintenance payments.
Legally speaking, the maintenance period continues after the retirement date. This means that you must also continue to pay partner maintenance. But what happens if you can no longer pay partner maintenance because your income falls, such as when you retire? In that case, can you be forced to continue working after the retirement date? The answer to that question is obvious: no, you may stop working and therefore you may also stop paying maintenance. The only condition is that your former partner must agree. If your former partner does not agree, you will have to go to court.
Does your former partner not agree to the termination of the partner maintenance after your retirement? Then you will have to go to court. In this situation it is obviously important whether your former partner also receives a pension and an old-age pension benefit. If you and your former partner accrued pension together during your marriage or registered partnership, it is highly likely that pension equalisation was part of the divorce agreement. The court will consider all the facts and circumstances. The main features are as follows:
stop working + reduction of ability to pay (what you can pay) = nil maintenance or at least a reduction in maintenance payments.
However, there are exceptions. I came across such an exception in a ruling by the District Court of Oost-Brabant in March 2022.
The man continued to work after retirement because he needed to support his new family. He asked his divorce lawyer if he could stop paying maintenance and the lawyer, in the man’s name, applied to the court. The man was of the opinion that his income from work should not be taken into account when calculating his ability to pay, as he was not obliged to continue working. However, the court held that the man had made the choice to continue working, and he should use this actual income to meet his maintenance obligation. The man does not have the free choice to dispose of his actual income, given the maintenance obligation towards his former partner. In this case, the former partner did not yet receive a pension or an old-age pension benefit.
A striking statement in my opinion, because you could draw the conclusion that if he really did stop working, his former partner would receive no maintenance, or much less. It is not a choice of the man, as the court puts it, but an accomplished fact; the man must continue to work in order to be able to pay for his current family and his former partner.
Given the future ageing of the population in the Netherlands, this is a situation that will certainly come up for discussion more often.
Do you need advice on calculating partner and/or child maintenance? Do you want to record the maintenance agreements? Or do you want advice on whether it is possible to change the amount of the maintenance? Please do not hesitate to contact me directly.
