How much spousal and/or child support do I have to pay?
How much spousal and/or child support do I have to pay?
Often the same or similar questions are asked in the case of a divorce. In this article we answer the following question:
How much spousal and/or child support do I have to pay for the children and/or my former partner?
Everyone in the Netherlands knows more or less what spousal and/or child support is and many have an opinion about it. But it is actually a lot more complex than most people think. To be able to answer the question of how much spousal and/or child support someone should pay, you have to look at a large number of things that are important when calculating spousal and/or child support. I would like to summarise these matters for you.
Spousal and/or child support and determining the amount thereof involves a kind of scale. On one side of the scale is the need and on the other side is the financial capacity. The scales must be balanced. The amount at which this balance is found is the amount to be paid in spousal and/or child support. But what is the need and what is the financial capacity? Let’s start with the need.
Determining the need
The need is the amount that a child or the former partner requires to be able to support themselves. The need is always determined based on the financial situation of the parties at the time when everything was fine and the partners still lived together. The need is calculated on the wealth level that the parties had when they were still together. For this purpose, the net disposable income that the partners had together is looked at. Based on this net disposable income, the children’s need can then be calculated based on the applicable NIBUD tables, also in connection with the children’s age. This is the amount the children need to support themselves. Support includes not only food, clothing, school and hobby expenses, but also living in a home, i.e. the cost of gas, water and electricity, Internet and so on. The children’s needs are therefore calculated on the basis of the family’s net disposable income and the applicable tables.
This is different for the partner’s needs. This can be calculated in two ways. The clearest way is to have a list of needs drawn up by the partner who wants to receive spousal and/or child support. On the basis of this list, which includes all monthly expenses, it becomes clear what the partner’s needs are. You can think of not only the costs for a house, but also the gym subscription or, for example, putting money aside for holidays. It is especially important that it fits the situation of the parties as it was when they separated. The expenses made then should be included in the list of needs. The only exception to this may be that there is now a new home with different housing expenses.
“In order to determine the amount of spousal and/or child support, we need to determine the need and financial capacity.”
Another way of calculating a partner’s need is by using the Court of Appeal standard. The Court of Appeal once devised a rule for calculating the need of a former partner. This is as follows. First the net disposable income of the family must be calculated. From that the costs of the children are deducted, because children have priority over partners. From the remaining amount 60% is taken. That is the amount each partner needs to be able to meet their needs. This is 60% and not 50%, because you only need a little more for example for a house, than when you can share these costs with a partner.
Determining the financial capacity
If the need of a child or a partner is known, you know one side of the scale. The other side of the scale is the financial capacity. Financial capacity is calculated on the basis of the current income details of the parents or the former partner.
For child support, the financial capacity is calculated according to a calculation formula. First, your net disposable income is calculated. You may then deduct the statutory assistance criterion from this. You may also use 30% of your net disposable income to spend on the house (as rent or mortgage). For the rest of the amount, you must use 70% for child support. This is the child support capacity. With children it is of course true that there are usually two or sometimes more parents over whom the costs of the children, the need, must be divided. This is done in proportion to the financial capacity. This means that for children you must always calculate the financial capacity of all parents and then see how these financial capacities relate to each other. For example, it could be that the father’s financial capacity is €200 and the mother’s is €100. This means that if the costs of the children have to be divided, the father must pay 2/3 of the costs and the mother 1/3. Hereby the care deduction must be taken into account. This is the amount that is deducted from the eventual (possible) child support if the parent who pays the child support has the children with him/her in the context of a care arrangement. Of course, this parent also has the necessary costs for the children. The care deduction is based on a percentage. If you have the children one day a week on average, the percentage is 15%, if it is two days a week it is 25%, if it is three or more days a week it is 35%.
For a partner it is more difficult to calculate the financial capacity. This is done via an extensive financial capacity calculation via a spousal and/or child support calculation program. In short, this takes into account the current income situation, from which a number of things are deducted. These are in any case the housing costs, but also the costs for health insurance and sometimes also the debts arising from the marriage. For example, if it has been agreed that this partner will take over a debt from the marriage in its entirety. Normally, this debt should be borne half by each party. If this is not the case because one of the partners takes over the debt in full, the monthly payment of this debt is often taken into account. From the calculation, it follows what the partner’s natural capacity is, and thus the amount of spousal support he or she can afford.
Moreover, it is important that spousal support is always fixed as a gross amount. This is because for the one who pays, the partner support is tax deductible. However, the recipient must pay tax on the spousal support received. Therefore, it is good to have a clear idea of the gross amount of spousal support you will receive when you pay, but also of the tax refund that you can expect. Child support is always a net amount.
Studying children under 21
In this context it is also important to mention that parents remain financially responsible for their children until they turn 21. This means that an amount of child support is also owed for children between the ages of 18 and 21. When a child reaches the age of 18 and thus becomes an adult, the child support has to be paid to the child itself. If a child lives at home with one of the parents, it can be agreed between parents and child that the support amount is paid to the parent with whom the child lives. If there is no agreement on this, the amount must be paid directly to the child.
“There are various ways to calculate what a studying child needs.”
In principle, an amount of child support remains the same even when the child has turned 18. The simple fact that the child has turned 18 does not mean that the amount of child support needs to be changed. However, it may be the case that a child of 18, because he or she is studying and therefore has considerable expenses, will have a different need for support. There are various ways to calculate what a studying child needs. Here, too, a list of needs could be used, but there are also standards from the Student Finance Act. Of course, it is also the case that these children often already have their own income from, for example, a part-time job. This must also be taken into account.
Determining child and spousal maintenance
The child support is recorded in the parenting plan and the divorce settlement. The spousal support is laid down in the divorce agreement. In any case it is important that the starting points which have led to the support amounts are included in the documents. In any case the need should always be included in the documents, so that it is clear in the parenting plan or divorce settlement what a child or partner needs. This is important because a discussion about the needs could arise in the future. We would rather avoid such complications.
It is not only important that the support amounts are recorded in the divorce settlement and/or parenting plan, but also that the court confirms these amounts in a judgment. After all, if the one who receives the support does not receive it in the end because the party owing the support does not pay (any more), a bailiff or the LBIO can only be called in if there is a ruling in which the support amounts are established. Incidentally, the LBIO is the National Maintenance Collection Agency, which can collect child and spousal support for the person who should receive it.
“Always include the principles that led to the support amounts in the parenting plan and divorce settlement.”
As you have been able to read, determining partner and child support is a complex matter and it is therefore not possible to simply say what amount someone should pay in child and/or partner support. Moreover, it is not possible to say what the amount of child or partner support should be on the basis of one pay slip of the person liable for support. For this, many more things are important. Therefore, it is good to seriously think about and investigate what amount of child and spousal support is appropriate. This is important for the one who has to pay, but certainly also for the one who receives. After all, neither of you will benefit if the amounts are set too high. It is therefore important to discuss child and spousal support with each other.
Note! If a no-change clause is included in a divorce settlement, this means that the court cannot change the support payment. For more information, see the article “No-change clause: what is it and why do we advise against including it in your divorce settlement“.
Do you have any questions?
The lawyers of TEN always consider the best way of resolving matters in consultation with you. As far as establishing spousal and/or child support is concerned, it is important to gain a good insight into the financial situation of both partners and to discuss the support to be paid.
However, if it is not possible to reach a solution by mutual agreement, the lawyers of TEN can assist you. In that case, too, we will first see if it is possible to come to an agreement by mutual consultation regarding the maintenance payments. If, however, this does not succeed, we will of course be pleased to vigorously assist you in conducting proceedings to establish the child and/or spousal support.