setting and changing PARTNER maintenance
What is partner maintenance?
When, after your marriage or registered partnership, or after having made arrangements in your cohabitation contract about partner maintenance, your income is insufficient to live on, you may request maintenance from your ex-partner. Perhaps you are the one to pay for maintenance. Whether there is a reason to determine partner maintenance, depends on all kinds of rules. What is taken into consideration, for instance, is what the standard of living was at the time of the marriage and the financial capacity of the person paying maintenance.
The basic rule is that after a divorce, the a maximum period for maintenance to be paid is twelve years. A childless marriage that lasted only five years, means that the period of time that maintenance is to be paid is limited to the duration of the marriage.
When can I claim maintenance?
One of the conditions to be able to determine whether someone is entitled to maintenance, is the need for maintenance. People are in need of maintenance if they cannot fully support themselves. That is to say, if a person lacks the necessary means and cannot reasonably obtain them. The maintenance amount to be determined may not exceed the need or the financial capacity. This means the lowest of the two will be the maximum amount.
What are Trema standards?
Trema standards are also called maintenance standards and they can be found in the Trema report. This report includes the recommendations and reports by the maintenance standards working group (Werkgroep Alimentatienormen) of the Netherlands Association for the Judiciary
1. (Nederlandse Vereniging van Rechtspraak). The report provides recommendations for a uniform, practical implementation of the legal standards, of need, and financial capacity. The report can be found on www.rechtspraak.nl.
How may maintenance be adjusted#?
A court decision or a maintenance agreement may be adjusted by mutual agreement or by the court when it does not meet the legal standards anymore because of a change in circumstances. What is required, is a change in the circumstances as they were determined by the court at the time of the decision, or a change in the circumstances the parties took into account when they made the agreement, respectively. There has to be a change in circumstances that implies that the court decision does no longer meet the legal standards. It doesn’t mean that any change will be sufficient to adjust maintenance amounts. If a maintenance amount determined by the court or agreed by the parties is open to change, a new maintenance amount will have to be determined, based on all the facts and circumstances of that moment. A court decision on maintenance may also be adjusted if it did not meet the legal standards to begin with because the court’s decision was based on incorrect or incomplete information. A maintenance agreement may also be adjusted if the agreement was made with a gross failure to recognise the legal standards.
When does maintenance stop?
Maintenance stops when the person entitled to financial support or the person who has a duty to provide financial support, dies.
Maintenance stops when the person entitled to financial support no longer needs it because he or she can fully support him or herself.
Maintenance stops when the person entitled to it will begin living together with another person as if they were married or as if they had a registered partnership. Maintenance stops when the court has decided that the person having the duty to pay has not got the financial capacity to pay maintenance, or does not have it any longer. Maintenance stops automatically when – calculated from the divorce date – the person entitled to maintenance has received it for five or twelve years, respectively.
How can I receive maintenance for a longer period of time?
When the maintenance period of five or twelve years has expired, the person entitled to maintenance can file an application at the court – within three months’ time – for an extension of the maintenance period. If the termination of the payments as a result of the expiry of the period has such drastic consequences that an unchanged upholding of that term cannot reasonably be required from the person entitled to maintenance, the court may – at the request of the person entitled to it – extend the period of maintenance. The requirements that will have to be met are stringent.
My ex is living together with someone else, can I stop paying maintenance?
The law provides that the duty to pay maintenance ends when the person entitled to maintenance gets married again, enters into a registered partnership, or starts living together with another person as if they were married, or as if they had their partnership registered. Having a joint household and caring for each other are the criteria for people living together as if married. The person having the duty to pay maintenance needs to prove the fact that the people concerned are living together if the person entitled to maintenance denies it. The burden of proof is on the person who is obliged to pay maintenance. If the duty to pay maintenance has been included in a court decision, a person obliged to pay maintenance cannot just stop paying. In general this requires a court decision. Ask Chambers Advocaten for advice if you find yourself in this situation.
What is a no-change clause?
When parties have agreed on maintenance, or they agreed that no maintenance is owed to each other, a no-change clause may arise. This clause means that the abovementioned agreement cannot be changed, even if there would be a change of circumstances in the future. Changes may occur in case of such a drastic change of circumstances that the party requesting the change cannot – by any criteria of reasonableness and fairness – remain bound to the no-change clause.
Dutch Act on Partner Maintenance (Revision) (Wet Herziening Partneralimentatie)
In the media there was a lot of discussion about the new law on the revision of partner maintenance. This new law will apply from 1/1/2020 and limits the duration of partner maintenance. Partner maintenance is to be paid for half the time the marriage lasted with a maximum of five years. There are two statutory exceptions:
– long-term marriages
– marriages involving young children
This new law means that in the case of marriages lasting longer than 15 years, where the age of the person entitled to maintenance is not more than 10 years lower than the state pension age, the maximum period of time that maintenance is to be paid is 10 years. Persons entitled to maintenance aged 50 or older and having been married for 15 years, will be entitled to 10 years of maintenance. In the case of marriages involving children younger than 12, the maximum period of time partner maintenance will have to be paid is 12 years.
The law includes a hardship clause for distressing cases and has a transitory provision. In addition, the calculations of need and financial capacity that are used for the decision about providing maintenance, are provided to the requesting party and the interested parties appearing in the proceedings.
In addition, the fact that the person obliged to pay maintenance reaches the state pension age, does not automatically lead to the expiry of the obligation to pay maintenance. This measure improves the position of persons who are entitled to maintenance and are 50 or older.
For all cases where a petition for divorce has been submitted before the new Act has come into force, the law as it stands applies. All divorces granted before the date the new law has come into force, will be processed under the law as it stands.
The parties may together opt for the new system to be applied.
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