There are misunderstandings about the existence of spousal maintenance, for instance that a woman has no right to spousal maintenance if she has her own income and works fulltime. The starting points for the determining of spousal maintenance are much more complicated.
The need of the person entitled to receive maintenance
It must first be assessed if the person entitled to receive maintenance needs a contribution. The prosperity enjoyed during the marriage is the guiding principle in this respect. A formula was developed a few years ago for the calculation of this. This formula, also known as the court of appeal standard, is in principle the determining factor when calculating the need. However, this method of calculation does not have to be the criterion in all cases. The court can be applied to, stating reasons, to establish the need of the person entitled to receive maintenance in another manner. The person entitled to receive maintenance will then have to prove the need on the basis of the specific costs. What income the person entitled to receive maintenance personally earns or could earn to provide for the amount of the living costs of course also plays a role in the determining of the need. It is therefore a misunderstanding to think that the least earning partner after a divorce, usually the woman, does not have to undertake activities to raise her personal income to a higher level if that – taking all circumstances into consideration – could be one of the possibilities.
Capacity of the person obliged to pay maintenance
If it is clear that there is a certain need for a contribution to the living costs, it must then be assessed whether the other partner, taking into consideration current income and expenditure, is capable of paying this contribution. The calculation of the financial capacity takes place on the basis of the TREMA (Journal for the Judiciary) standards. The current income and the current expenditure is therefore of importance for the determination of spousal maintenance. The TREMA (Journal for the Judiciary) standards state which income must be taken into consideration. It is not as easy to determine this for entrepreneurs as it is for employees who have a fixed salary. It is therefore of great importance, especially for entrepreneurs, to be assisted by a family law specialist who is familiar with the implications of a maintenance obligation for an entrepreneur. Furthermore, the expenditure which must be taken into consideration during the determining of the financial capacity regularly causes arguments. During the calculation of the spousal maintenance, various points of view with regard to income and expenditure can result in considerably different outcomes; advantage can be gained from obtaining expert assistance.
Change of circumstances
Our lawyers have researched the guidelines and the case law with regard to spousal maintenance and can, on the basis of the available financial documents, very quickly do a calculation of spousal maintenance. We can also point out the tax consequences. Since every change in financial circumstances of one of the ex-partners can result in a change of the level of the maintenance contribution to be paid/to be received, it can be advisable to have a recalculation of the appropriated spousal maintenance carried out.
If the person entitled to receive maintenance wishes to marry, enter into a registered partnership or wants to cohabit with another, the person entitled to receive maintenance (usually the woman) will no longer have the right to spousal maintenance from that point in time. If the ex-spouses are in dispute about the question of whether there is cohabitation with a new partner and, therefore, if there is reason to end the spousal maintenance, the court can be applied to for a decision on this matter.
Asselbergs & Klinkhamer Advocaten can calculate, advise and bring legal proceedings when it concerns the determining of child and spousal maintenance or the adjustment or ending thereof. Entrepreneurs with maintenance obligations can count on expert assistance. If you have any questions then please phone us or send us an email.