Can I get out from under spousal support in case of misconduct by my ex?

Often in the context of divorce, the same or similar questions are asked to lawyers. In this series of articles “The most frequently asked divorce questions” our family law attorneys will answer some of these questions.

Question:

Can I get out from under spousal support in case of misconduct by my ex?

Answer:

The above question is regularly put to me. Are you obliged to pay alimony when your (ex)partner has misbehaved (seriously)? In this case, it is not about the financial factors of need (i.e.: does the person entitled to alimony need alimony) and ability to pay (i.e.: can alimony be paid).The issue in this case is whether the obligation to pay partner alimony can come to a definite end on non-financial grounds, for example because your (ex)partner has shown misconduct. This is certainly possible, but when is the situation so unacceptable that spousal support can be terminated? We will go into that in more detail in this article, but first below is a list of points when partner alimony ends in any case.

When does spousal support stop?

The law provides that the obligation to pay spousal maintenance stops permanently in case:

• the alimony period is over, i.e. when the period during which you are entitled to spousal support is over;
• If your ex moves in between;
• If your ex remarries in the interim;
• If your ex enters into a registered partnership.

So, in the above cases, the obligation to pay partner alimony stops in any case, but the question is in which cases partner alimony can be stopped earlier due to what we call abusive behaviour (misconduct) of your ex-partner. In such a situation, the court must answer the question of whether the conduct of the maintenance recipient is so serious that partner maintenance cannot be claimed, based on the parties’ contentions. A common question is whether cheating is a reason for not having to pay spousal support.

Are you entitled to spousal support if you cheated or else should I pay spousal support if my ex cheated?

Adultery in itself does not lead to an end of spousal support. This is because the legislator has chosen to regard this circumstance as not legally relevant. Of course, attempts have been made to get an end to partner maintenance through the bond of concealed behaviour, but this too will not succeed because there is no legal obligation to confess within relationships.

Case law suggests that there must be quite a lot going on before the consequence is a final termination of the spousal support obligation for misconduct. In divorce situations, emotions sometimes run high, but unreasonable, unsympathetic or sometimes abusive behaviour does not – in divorce dynamics – make the strict standard for termination of spousal support satisfied. The following circumstances proved insufficient to terminate the alimony obligation:

• Wife’s submission of incorrect prenuptial agreement;
• omitting (her) income;
• woman’s blackening of the man;
• lengthy divorce preparation;
• assuming a victim role;
• withdrawing savings daughter.

If there is mutually abusive behaviour and the court finds that there is some balance in the quarrel, it will also not come to an end of spousal maintenance. It is then the reciprocity that makes that the alimony obligation still remains in place.
However, even if the abusive behaviour comes from one side, the court may still rule that the entitlement to spousal support is preserved. In a case of domestic violence committed by the maintenance recipient resulting in behavioural disturbances of the children and abusive remarks towards the husband, the husband got zero on his claim that the partner maintenance obligation had stopped. It seems that a role in this was that the wife was struggling with psychological problems.

Below I outline some situations where the maintenance obligation has been terminated on the basis of abusive behaviour

Situation 1
The man who was accused of sexually abusing his children saw his child support obligation terminated because there were serious additional circumstances: his wife had filed charges, which were then magnified by accusing him of taking nude photos and raping them. The man’s home was raided, confiscated material examined and there was also police contact with his employer. No evidence was found. In these circumstances (and therefore the social harm to the husband), the court found that the wife had definitively lost her right to spousal support.

Situation 2
The same thing happened to the wife who seriously misbehaved for a long time: There had been a sustained and seemingly coercive series of stalking over many years, of deliberate violations of the husband’s privacy by the wife, in which she also involved the children, for which violations the wife was unable to provide any justification or reasonable explanation. In this case, the court also found it significant that the husband, for his part, was not guilty of such conduct. Here too, it is clear that an imbalance in behaviour plays a role.

Situation 3
Finally, abusive behaviour can also take place at the so-called parent level. The mother who takes her child abroad, thereby removing it from the father’s custody ( and thus making contact between him and his child impossible for more than six months) loses her right to spousal support permanently.

I want to stop spousal support

If you believe that you do not have a maintenance obligation due to conduct by your soon-to-be ex-partner, it is important to have a proper and careful review of whether that conduct stands a chance of bringing your maintenance obligation to a final end through the courts in light of the onerous criterion.

Moreover, moderation of alimony may well be a possibility. On request, the court can moderate the alimony in case of grievous behaviour that, in his or her judgment, does not lead to an end of the alimony obligation. This could lead to, for example, halving the amount or other mitigation.

I will be happy to advise you!

The most frequently asked divorce questions

Often in the context of divorce, the same or similar questions are asked to lawyers. In this series of articles “The most frequently asked divorce questions” our family law attorneys will answer some of these questions.

If you have a question you would like to see answered in the next ” The most frequently asked divorce questions“, please let us know!