Spousal support

What is spousal maintenance and when are you obliged to pay?

Spousal maintenance is only due if there was a marriage or registered partnership. Cohabiting partners have no legal maintenance obligation toward each other unless they have explicitly established this in a cohabitation agreement.

The maintenance obligation after divorce is regulated in Article 1:157 of the Dutch Civil Code. Whether maintenance is due depends on two conditions: the recipient has a demonstrable need, and the payer has the financial capacity. If both conditions are met, the court can determine the maintenance.

In this explanation, we assume Dutch law. The court also looks at the recipient’s own earning capacity. If someone is able to earn more but fails to do so, the court will in many cases take into account the income that could reasonably have been earned.

How is spousal maintenance calculated? The two-step model

The calculation of spousal maintenance proceeds in two steps: first, the recipient’s need is determined, then the payer’s capacity. The final maintenance amount is never higher than the lower of the two.

Step 1: Determining the receiving partner’s need

The need is the amount the recipient requires to maintain the standard of living enjoyed during the marriage. This is not a subjective amount: in practice, judges use the ‘Hofnorm’ (Court Standard) as a starting point, a calculation method that roughly determines the need based on family income.

According to the Hofnorm, the need is generally set at 60% of the joint net disposable family income in the final years of the marriage, after deducting the costs of the children. That percentage is higher than 50% because running two separate households is more expensive in total than one joint household.

Does the recipient have their own income? If so, this is deducted from the calculated need. If the own income is equal to or higher than the calculated need, there is in principle no right to maintenance.

In addition to the Hofnorm, the need can also be substantiated with a detailed list of requirements: an overview of all monthly expenses of the maintenance creditor. This approach allows for customization but requires careful substantiation and often leads to discussion about individual items in legal proceedings.

Step 2: Calculating the paying partner’s capacity

The capacity determines how much the payer can afford after deducting fixed costs. The starting point is the net disposable income, minus the ‘capacity-free’ income: the social assistance standard plus fixed costs for housing, healthcare, and work-related expenses.

Since the 2023 Trema standards, a fixed housing budget of 30% of the net income is used for housing costs instead of actual housing costs. In some cases, this can lead to a higher or lower capacity than one based on actual rent or mortgage payments.

If there are children, child support takes precedence over spousal maintenance. The capacity is first allocated to child support; only any remaining space becomes available for spousal maintenance.

What are the Trema standards and how does the court use them?

The Trema standards are guidelines from the Judiciary’s Maintenance Standards Expert Group, drawn up within the framework of the National Consultation on Family Law (LOVF). Courts and lawyers throughout the Netherlands use these standards as the calculation method for maintenance calculations.

The Trema standards are not law, but recommendations from the Maintenance Standards Expert Group that are widely followed by judges and lawyers in practice. Deviation is possible if the facts of a specific case warrant it, but must be explicitly justified by the judge.

Important changes in the 2023 Trema standards include: (1) the introduction of the 30% fixed housing budget for both partners, (2) an adjustment to the equalization of disposable income where special costs for children are also included.

Equalization of disposable income: when does this apply to your situation?

The equalization of disposable income (‘jusvergelijking’) is a check calculation that prevents the recipient of maintenance from having more net disposable income than the payer. The term ‘jus’ refers to the free spending room remaining after all fixed costs have been met.

If the calculation shows that the recipient has more free room than the payer after the maintenance contribution, the maintenance amount is reduced to the point where both ex-partners have equal free room.

The equalization of disposable income particularly plays a role in situations with relatively high capacity and limited need, or when the recipient has their own income. In more complex situations, such as DGA income or significant assets, this equalization can have a significant influence on the final amount. Example: if the payer has 600 euros of free room left after maintenance and the recipient has 750 euros after receipt, the maintenance amount is reduced until both ex-partners reach 675 euros of free room. The goal is to prevent the maintenance creditor from having more free spending room than the maintenance debtor after payment.

How long does the maintenance obligation last?

Since the Spousal Maintenance Revision Act (Stb. 2019/475), the general rule is that spousal maintenance lasts for a maximum of half the duration of the marriage, with an absolute maximum of five years. Only in a number of legally defined exceptional situations can the duration extend to a maximum of twelve years. For marriages dissolved before January 1, 2020, the maximum term of twelve years was the general rule.

Marriages dissolved after January 1, 2020

The general rule is: a maximum of half the duration of the marriage, with an absolute maximum of five years. In three legally defined exceptional situations, the duration can extend to a maximum of twelve years:

• Children under twelve: the maintenance obligation continues until the youngest child turns twelve, with a maximum of twelve years in total.
• Long-term marriage with an older maintenance creditor: in a marriage of fifteen years or longer where the recipient was born before January 1, 1970, maintenance can continue until the state pension (AOW) age, with a maximum of twelve years.
• Transitional and special situations: the law includes additional exceptions for specific circumstances that the court assesses on a case-by-case basis.

In addition, the maintenance obligation always ends if the recipient remarries, enters into a registered partnership, or starts cohabiting as if they were married, pursuant to Article 1:160 of the Dutch Civil Code.

Marriages dissolved before January 1, 2020

For marriages dissolved before January 1, 2020, the maximum term of twelve years applies under the old legislation. Extension was possible in that situation via a court petition. In practice, many of these situations are now eligible for revision if circumstances have changed.

Special situations affecting the calculation

DGA, own business, or freelancer (ZZP)

Anyone who must pay maintenance as a director-major shareholder (DGA) or freelancer (ZZP) faces a more complex income determination. A DGA’s income consists not only of salary but also of dividend payments, company cars, bonuses, and pension accrual under own management.

In the case of a DGA, judges look at the total financial benefit the shareholder enjoys from their BV, including amounts settled through the company. In practice, this leads to discussion about which income concept forms the basis for the capacity calculation. In these types of cases, lawyers often work with an accountant or financial expert to reconstruct the relevant income.

Blended family

A blended family reduces the capacity for spousal maintenance because the judge weighs all of the payer’s maintenance obligations against each other. The Trema standards use a fixed order of priority: child support takes precedence over spousal maintenance. Child support for children from a new relationship therefore competes directly with the existing spousal maintenance obligation. The costs of new children are first deducted from the available capacity; only what remains becomes available for spousal maintenance.

International situations

If one of the ex-partners resides abroad, or if the divorce took place abroad, Dutch maintenance law does not automatically apply. Which court has jurisdiction and which law applies is determined by European maintenance regulations and the 2007 Hague Maintenance Protocol. It should be noted that even if one of the parties lives abroad, the Dutch court may still have jurisdiction in many cases; however, this is a matter of customization for which legal advice is required.

You can find more information about the international aspects of divorce on our page about international divorce.

Case Example

DGA income and the basis for capacity

The central legal question was whether dividends and retained earnings from an IT company counted as income for the capacity calculation. The paying partner paid himself a relatively low DGA salary, while the company structurally made a profit and built up extensive reserves. Based on the Trema standards, we mapped out the total economic benefit the shareholder actually enjoyed from his BV to create a realistic capacity calculation.

Recalculation after income change for the payer

The legal question was whether a significant drop in income due to forced redundancy constituted a relevant change in circumstances within the meaning of Article 1:401 of the Dutch Civil Code, justifying a recalculation of the established spousal maintenance. The established maintenance was based on a management position that the payer no longer held; his current income was well below the income on which the original capacity calculation was based. We analyzed whether the income drop had occurred through no fault of the payer and what consequences this had for the capacity under the Trema standards.

Blended family and competing maintenance obligations

The question was how the capacity should be divided now that the paying partner had children from a new relationship, in addition to the ongoing spousal maintenance obligation toward his ex-wife. Under the Trema standards, child support for children from the new relationship takes precedence over spousal maintenance, reducing the available space for the ex-wife. We mapped out all maintenance obligations and examined the order in which priorities were applied during the recalculation of the maintenance amount.

These examples have been anonymized and are based on multiple cases from our practice. No conclusions can be drawn regarding outcomes in individual cases.

When can you request a recalculation?

Established spousal maintenance is not unchangeable. Based on Article 1:401 of the Dutch Civil Code, a recalculation can be requested if circumstances have changed such that the established contribution no longer meets legal standards.

Relevant changes include: a significant change in the income of either party, the recipient starting to cohabit, remarriage, termination of employment, or a substantial change in housing costs.

Please note: if a non-modification clause is included in the settlement agreement, recalculation via the court is only possible in exceptional cases. The court is cautious with such a clause but can still intervene in the event of drastic circumstances.

You can find more information on our page about changing spousal maintenance.

Tax consequences of spousal maintenance

Spousal maintenance has tax consequences for both parties. The recipient pays income tax on the maintenance received. The payer can deduct the paid maintenance as a personal deduction in Box 1.

For agreements made before January 1, 2020, the deductibility of paid spousal maintenance has been phased out in recent years to the low rate in Box 1. In 2026, paid spousal maintenance for higher incomes will still be deductible at a maximum of approximately 37.5%. As a result, a maintenance amount that has remained the same on paper may have started to cost the payer more in net terms. A recalculation may be useful in that case.

For current percentages, consult the information from the Tax Authorities regarding maintenance.

Settlement agreement or court order: what is the difference?

Spousal maintenance can be established in a divorce settlement agreement that is included by the judge in the order, or established directly by the judge through a legal procedure.

A settlement agreement without judicial ratification has limited legal force. If your ex-partner fails to comply with the agreements, you have no direct means of enforcement without an order and will be dependent on a new procedure.

A court order provides the possibility to involve the LBIO (Landelijk Bureau Inning Onderhoudsbijdragen) for collection in the event of non-payment. This is an important practical difference that deserves attention when recording agreements.

How do you calculate an indication yourself?

Online calculation tools such as the tool on berekenhet.nl or the calculation via the LBIO provide an indication based on the Trema standards. Online calculation tools simplify the calculation and do not always fully take into account all income, expenses, and special circumstances in your situation.

An official calculation is always based on the gross method and is performed using specialized calculation software. Courts work with the same software. A self-calculated indication provides a direction, but negotiations and procedures are always based on a full, up-to-date calculation using specialized software.

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