Changing or terminating spousal maintenance

When can spousal maintenance be changed?

Spousal maintenance can be changed or terminated if circumstances have changed substantially since it was established. The legal basis is Art. 1:401 BW: anyone wishing to adjust a maintenance arrangement must demonstrate that the situation was incorrectly established at the time, or that a relevant change has occurred since then.

A relevant change is a change so significant that the previous agreements are no longer reasonable. Examples include a substantial loss of income for the paying partner, a significant increase in the recipient’s income, or a structural change in the childcare arrangements. Depending on the circumstances, the court assesses whether the change is sufficiently weighty.

Common grounds for change

• Substantial loss of income for the paying partner due to dismissal, disability, or retirement.
• Significant increase in the recipient’s income, reducing the need for maintenance.
• Remarriage or entering into a registered partnership by the recipient: the maintenance obligation ends in principle by operation of law (Art. 1:160 BW). In practice, a legal step is often still required to stop payment and arrange for any potential recovery of funds.
• Cohabitation by the recipient as if they were married (Art. 1:160 BW): maintenance can end, but the court strictly assesses whether there is a long-term relationship, joint household, and mutual care. This must be substantiated with concrete facts and documents.
• Long-term unemployment or illness that structurally affects financial capacity.
• Expiration of the statutory maximum maintenance duration (in many cases five years after the marriage, depending on the situation).

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 can no longer be changed via the court. This clause is in principle legally valid and binds both parties, even if the financial situation changes drastically later, unless invoking the clause is unacceptable according to standards of reasonableness and fairness (Art. 1:159 BW).

The threshold for setting aside a non-modification clause is high. Only if the changed circumstances are so drastic that maintaining the clause unchanged is unacceptable according to standards of reasonableness and fairness can the court intervene. Financial setbacks or a limited decline in income are insufficient in most cases.

If you still wish to request a change despite a non-modification clause, a well-substantiated file is crucial. A specialized

divorce lawyer can assess in advance whether your circumstances are serious enough for a procedure.

In what ways can you have spousal maintenance changed?

You can have spousal maintenance adjusted in three ways: by mutual agreement, through mediation, or via a court procedure. Which route is appropriate depends on your ex-partner’s willingness to cooperate and the complexity of your situation.

1. Mutual consultation

If you and your ex-partner agree on a new arrangement, you can record the change in writing in a supplemental agreement. Preferably record the agreements in writing and, where necessary, have them ratified by the court. A verbal agreement can in principle be legally valid, but is difficult to prove and generally not enforceable.

2. Mediation

If you and your ex-partner cannot reach an agreement yourselves but would prefer to avoid a procedure, mediation can offer a solution. An MfN-registered mediator facilitates the discussion. The agreements made are recorded in writing, potentially with ratification by the court.

3. Legal procedure

If your ex-partner does not cooperate with a change, you can file a petition with the court. A lawyer is mandatory for this. The procedure begins with a petition; the opposing party is then given a period determined by the court to file a defense. This period depends on the procedure and the place of residence of the parties.

Keep procedural risk in mind: the judge can also maintain the maintenance or adjust it in a way that does not correspond to your request. A lawyer helps you to assess this risk in advance.

What if too much maintenance has been paid?

If the paying partner has paid too much maintenance over a longer period, legal recovery may be possible. In practice, 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. Full recovery is therefore regularly limited or rejected.

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 to see what your income, expenses, and health look like now. Missing or incomplete evidence delays the procedure and weakens your position. Your lawyer will help you collect all relevant documents in time and present them clearly to the court.

Common pieces of evidence include:

• Recent payslips or, for entrepreneurs, annual figures for the past two to three years and 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 (e.g., BRP extract, rental contract, statements).
• The original divorce agreement including any modification clauses.

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

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

Depending on the circumstances, the court may also look at the customary salary at a private limited company (BV), undistributed profit reserves, or assets within the company. A solid financial file, potentially substantiated by an accountant, is indispensable in these cases for a strong request for change.

Changing spousal maintenance in an international situation

If one of the parties lives abroad or if the spousal maintenance was established by a foreign court, the case quickly becomes more legally complex. In international cases, we first assess which court has jurisdiction and which law applies before advising on a procedure. The Hague Maintenance Convention 2007 broadly regulates the recognition and enforcement of maintenance decisions between a large number of contracting states. Within the EU, the EU Maintenance Regulation (No. 4/2009) also applies, which regulates, among other things, the jurisdiction of the court and the cross-border recognition of maintenance decisions. Which regulation exactly applies depends on the countries involved in your case.

Therefore, it is important to investigate early on 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. Both the Hague Maintenance Convention 2007 and the EU Maintenance Regulation play a role in the recognition of a foreign maintenance order.

Simmelink Lawyers assists both expats in the Netherlands and Dutch nationals living abroad with international maintenance issues. Even in an international situation, we can assess whether Dutch law applies or whether it is wiser to start a procedure abroad. You can read more about our approach on the international family law page.

What does Simmelink Lawyers do in the event of a request for change?

In complex financial matters or international elements, the help of a specialized lawyer is essential. Simmelink Lawyers translates the rules into clear agreements, so you know where you stand. We specialize in family law and international family law and work exclusively within these legal areas.

Our approach to a request for change typically includes: an assessment of the grounds for change and the file, an estimation of the chances and risks of a procedure, guidance during consultations or mediation, and if necessary, filing a petition with the court. We also indicate when a procedure is strategically less wise, for example, if the change is too minor or the file is not strong enough.

Would you like an advisory meeting about your situation? After your registration, our secretariat will contact you within one working day.

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