Changing spousal maintenance

When can spousal maintenance be changed?

Spousal maintenance can be modified when circumstances have changed significantly after it was established. The legal basis is Article 1:401 of the Dutch Civil Code (BW). Anyone seeking a modification must demonstrate that the situation was incorrectly established at the time or that a relevant change has occurred since then that makes the previous agreements no longer reasonable.

Common grounds for change:

• Substantial loss of income. Due to dismissal, disability, or retirement of the paying partner.
• Significant increase in the recipient’s income. Due to a new job, promotion, or full-time employment, which reduces the need for maintenance.
• Remarriage or registered partnership of the recipient. Terminates the spousal maintenance obligation by operation of law (Article 1:160 BW). In practice, a legal step is often still required to stop the payment and arrange for any potential recovery of funds.
• Cohabitation as if married. Based on Article 1:160 BW, cohabitation can also result in termination. The court applies strict criteria: there must be a long-term relationship, a shared household, and mutual care, which must be substantiated with concrete facts and documents.
• Long-term unemployment or illness. When this structurally affects the financial capacity.
• Expiry of maximum duration. Since January 1, 2020, the Spousal Maintenance Revision Act has been in effect: a maximum of five years or half the duration of the marriage, with exceptions for long marriages and young children.

What if a non-modification clause has been agreed upon?

A non-modification clause is a provision in the divorce agreement in which parties agree that the maintenance cannot be changed via the court. This clause is in principle legally valid and binds both parties, even if the financial situation changes drastically, unless invoking the clause is unacceptable according to standards of reasonableness and fairness (Article 1:159 BW).

The threshold for setting aside a non-modification clause is high. In Simmelink cases, we see that only drastic changes where maintaining the clause unchanged is unacceptable according to standards of reasonableness and fairness are sufficient for the court to intervene. Limited income fluctuations or foreseeable financial setbacks are rarely enough.

Anyone wishing to request a modification despite a non-modification clause must have a well-substantiated file with concrete evidence: medical statements, annual figures over several years, or proof of a drastically changed family situation. A specialized divorce lawyer can assess in advance whether the circumstances are serious enough to start a procedure.

In what ways can you have spousal maintenance changed?

Spousal maintenance can be adjusted in three ways, depending on the ex-partner’s willingness to cooperate and the complexity of the situation.

1. Mutual consultation

When both ex-partners agree on a new arrangement, the modification can be recorded in writing in a supplementary agreement. Written recording is important: a verbal agreement may be legally valid but is difficult to prove and not easily enforceable. Confirmation by the court gives the agreements full legal force.

2. Mediation

When consultation is difficult but a procedure can still be avoided, mediation can offer a solution. An MfN-registered mediator guides the consultation. The agreements made are recorded in writing, potentially with confirmation by the court.

3. Legal procedure

If the ex-partner does not cooperate with a modification, a petition can be filed with the court. A lawyer is mandatory for this. The opposing party is given a period set by the court to file a defense. Take procedural risk into account: the court can also maintain the maintenance or establish it differently than requested. In practice, judges weigh three factors in modification requests: the demonstrability of the changed circumstances, the extent to which the change is structural, and the balanced relationship between need and financial capacity.

What if too much maintenance has been paid?

When the paying partner has paid too much maintenance for a long period, recovery is legally possible but not self-evident. The court looks at, among other things, the duration of the overpayment, the financial situation of both parties, and whether the recipient has already spent the money on living expenses. In Simmelink cases, we see that full recovery is more often limited or rejected when the recipient has spent the money in good faith on daily expenses.

There is no fixed statutory period after which recovery is no longer possible; the judge weighs all circumstances of the case. This underscores the importance of acting promptly: the sooner a request for change is filed, the smaller the risk of unrecoverable overpayment.

Which documents do you need for a request for change?

The court wants insight into the current income, expenses, and health situation. Missing or incomplete evidence delays the procedure and weakens the position. Common evidence for a spousal maintenance modification request:

• Recent payslips or, for entrepreneurs, annual figures for the past two to three years plus an accountant’s statement.
• Tax returns and assessments for the relevant period.
• Medical information in case of disability or illness (documents from an occupational physician or specialist).
• Proof of cohabitation or remarriage of the recipient (BRP extract, rental contract, witness statements).
• The original divorce agreement including any non-modification clause.

Special situation: entrepreneur, director-major shareholder (DGA), or fluctuating income

For entrepreneurs, director-major shareholders, and freelancers, the court assesses income based on normalized business results over several years. Incidental high profits or dividend payments are not automatically included as structurally available income.

For a director-major shareholder, the court also weighs the customary salary at a BV, undistributed profit reserves, and assets in the company. In Simmelink cases, we see that the legal presentation of financial data is more often decisive for the outcome than the figures themselves: a recalculation that aligns with the structural income position carries more weight than a recalculation based on the most recent year.

How does modifying spousal maintenance work in an international situation?

When one of the parties lives abroad or the spousal maintenance was established by a foreign court, the case becomes legally more complex. In international cases, the first question is which court has jurisdiction and which law applies before a procedure is started on its merits. The 2007 Hague Maintenance Protocol determines the applicable law; within the EU, the EC Maintenance Regulation (EC No. 4/2009) also applies for jurisdiction and cross-border recognition. It is important to investigate early which court has jurisdiction and which law applies: those who wait too long may sometimes no longer be able to choose the most favorable route. For the recognition of a foreign maintenance order, both the 2007 Hague Maintenance Convention and the EC Maintenance Regulation play a role, depending on the countries involved. Read more about international family law.

Practical examples

Breaking a non-modification clause after disability

A paying ex-partner was declared permanently partially disabled after an accident. A non-modification clause was included in the divorce agreement. The question was whether the changed health situation was sufficiently drastic to break the clause based on Article 1:159 BW.

The legal assessment focused on the demonstrability of the permanent disability, the structural nature of the income drop, and the comparison with the original financial capacity calculation. With medical statements, a UWV ruling, and a recalculation according to the Trema standards, it was substantiated that maintaining the clause unchanged would be unacceptable according to standards of reasonableness and fairness.

Termination after cohabitation of the recipient

A paying ex-partner had indications that the recipient was living with a new partner. The question was whether there was cohabitation as if married within the meaning of Article 1:160 BW, with the result that the spousal maintenance obligation would have ended by operation of law.

The legal assessment focused on proving the three criteria: a long-term relationship, a shared household, and mutual care. Concrete evidence was collected: BRP extract, shared residential addresses, witness statements, and social media. Based on the file, a request for termination of the spousal maintenance was filed, with recovery of the overpaid amounts since the moment the cohabitation had demonstrably begun.

Modification after income increase of ex-partner

The receiving ex-partner obtained a significantly higher income after a career step than at the time of the divorce agreement. The question was whether the need for spousal maintenance had decreased as a result, so that the contribution could be reduced or terminated.

The legal assessment focused on the demonstrability of the structural income increase via tax returns and annual statements. A recalculation of the need according to statutory standards was prepared as substantiation for the modification request. The case was eventually finalized in mutual consultation, after mediation by a lawyer-mediator, and recorded in a supplementary agreement for confirmation by the court.

Trust and quality

Simmelink Lawyers is affiliated with the Dutch Bar Association.
Read more about our reviews or see how we work via our working method.