Recalculation of maintenance: advice and support

Questioner

lS, The essence of the question is whether recalculation of maintenance over a period of 6 is possible. Explanation: I have been self-employed since the end of 2005. I got divorced in 2008 and our agreement was signed in April 2009. Ruling in July 2009. An income of €100,000 has been determined. However, they have neglected to include the business expenses of approximately 10,000. I did not notice that at the time. I had a few bad years where I got into debt to meet my obligations. Now my turnover is fortunately higher again. At the time it was agreed that I would pay €2,000 per month in spousal support and €375 in child support per child for 4 children. With indexation now respectively €2163 and €405 (per child) All the children are still studying, 3 of whom are studying independently, and I feel obliged to support them until the end of their studies. On average over 6 years I have earned €88000 after deducting business expenses. In the meantime 3 of the 4 children are older than 18 years so there is no child deduction for them either. As of 2015 for none of the children. In mid-2010 I met my new Russian partner. We have been living together since mid-2012. My partner had no income for the first 1.5 years but of course had expenses. Now she is also starting to earn something. Now my ex-partner wants to do a recalculation over the past 3 years but not over a longer period. For me that is less interesting because I have been earning more in recent years. As I have calculated, I now have to earn at least 118,000, after deducting costs, in order to still be able to meet my obligations imposed at the time. This does not yet take into account the costs of my new partner. My ex-partner believes that she is entitled to the amount agreed in the agreement. At the time, she earned 12,000 per year and indicates that this has not increased. Would I be able to legally successfully have a recalculation made over a 6-year period? Please comment on this case

Lawyer

If your intention is to have child support determined retroactively, I can dispel this illusion from you: judges rarely determine a change retroactively based on the principle of legal certainty. Child support is calculated based on the needs of the children (based on the prosperity of the parents at the time of the divorce) and the current income of both parents (from which the financial capacity of both parents follows). The division of the financial capacity between the parents follows from the visitation arrangement. If you request a review of the child support, this will therefore in principle be ad nunc. You can read more about this in this report: http://www.recht.nl/nieuws/familierecht/113899/nieuwe-tremanorms-juli-2014-2014-2/ In principle, your ex-partner has the right on her side; as long as no new child support has been determined, either by both of you or by the court, the old arrangement remains in force. Your new partner's income or expenses are not relevant for calculating child support, but the fact that you can now share the household costs is. Your ability to pay may therefore increase.

Questioner

I probably haven't been clear, but I'm not interested in retroactively revising child support! I'm interested in re-establishing spousal support based on the past 6 years. The figures for that period show that I didn't have the income that was established during the divorce. Nor is it about recovering any overpaid spousal support. In my view, my ability to pay will be reduced if my new partner has no income due to health insurance, Dutch as a second language course, subsistence, etc.

Lawyer

Determining an entrepreneur's income and the resulting ability to pay is a custom job. The recommendations that courts use when determining the ability to pay of entrepreneurs advise to use the average result over the past three years, because this generally provides a consistent picture of the income. Averaging over a period other than three years is possible, provided that good arguments are provided. From your question I infer that your income is now back to the level of the income during the divorce; I therefore think that the judge will not quickly want to assume an average over a period of 6 years in your situation, because that is not in accordance with the current income or the income over the past few years. By the way, I note that the judge will look at your annual figures with a critical eye and will not simply calculate with the figures as accepted by the tax authorities. For example, corrections can be applied with regard to depreciation, if these purely reduce the taxable profit but do not actually reduce the disposable income. This also applies to provisions, etc. The fact that you currently have a partner who does not provide for his or her own maintenance will not be taken into account when determining child support. This may be relevant when determining spousal support. You must then demonstrate that your new partner cannot provide for her or her own maintenance. Your ex-partner may in turn take the position that you have more to spend because you could share housing costs. You rightly note that as of 1 January 2015, child support is no longer tax deductible; this reduces the ability to pay child support, but this can lead to higher spousal support, as there will then be more money left over for spousal support. What is also relevant for child support is that, as a result of the Child Arrangements Reform Act coming into effect on 1 January, a single parent can receive an allowance for the child-related budget. This child-related budget is deducted from the children's needs based on the applicable recommendations, so that a lower amount and in some cases no need remains that the parents have to provide for. A possible reduction of child support, can under certain circumstances lead to an increase of spousal support. However, what was agreed at the time of the divorce about the needs of the woman, her current income and her earning capacity are relevant. I would be happy to provide you with further advice based on your documents.