Does averaging of carrying capacity apply to self-employed persons?

Questioner

We have tried to draw up a parenting plan via a platform. The visitation arrangements and other matters have all been approved by us. The only thing that is still open is the amount of child support. Since we broke up, X has suggested paying EUR 400 per month. He has done so up until now, but he stopped paying in January because, in his own words, he “wants to pay the right amount, as soon as we have reached an agreement on it”. In addition, FYI: X also paid for childcare up to and including November 2022 and received an allowance for this. He stopped this, and from December I started paying for childcare, and I also applied for an allowance for this. In order to determine the correct amount of child support, we had the LBIO make a calculation of the ability to pay via that platform. This was already done in September. However, the data used turned out to be incorrect; my salary based on 4 days of work was used, his income was incorrect. In short, we asked the LBIO to make a new calculation. The result: 506 euros in support – minus care allowance for X, which would amount to 412.50. However, X now indicates that his correct income was not used for the calculation. To clarify; he works on a permanent basis at Y: 22K per year. In addition, he is a self-employed person and therefore has an income as a DJ. According to the trema report (link), the ability to pay calculation is based on the NBI (Net Disposable Income), whereby any increase/decrease in income must be taken into account, because that would also be the situation if we were still together. However, X's proposal now is to calculate with his profit from DJ work around the average of 3 years. I have problems with that because: • The average of 3 years of a very low and unrepresentative income is due to the corona years in which he has been at home • He wants to calculate with profit from business – I have looked at the tax returns of the past years, and he has an average annual income of 32K, but also writes off large amounts. Averaging over the last 3 years would come to negative (!) 5000 euros. The tax authorities have apparently always approved these figures, but the enormous depreciation is very doubtful (he has no assets to write off, and only does this to reduce income). I have read that a judge sometimes wants to look at the past 3 or 4 years for a self-employed person, in order to calculate the capacity to pay on that basis. For X, the corona years have of course been lean, but last year he had a normal year and earned 32K. How does the judge look at this? In addition, I have read that it is customary for a self-employed person to make agreements based on what the children need. In addition, it can be determined annually in arrears what should actually have been paid, so that a difference can be rectified. Then everything always remains pure. However, X absolutely does not want to sit down with me about this. He also absolutely does not want a mediator. So I feel more and more compelled to hire a lawyer. I get the feeling that I have to have a very detailed plan signed in which it is also stipulated that his DJ figures are validated annually by an independent accountant, so that the maintenance can then be calculated on that basis. In short, I would like to know what my rights are: • Is X right about his proposal to average the profit over the last three years (which will come to about -5K)? • Is it wise to take everything to a lawyer, including the tax returns of the past years because he has made unrealistic depreciation there to reduce profits? • How can I ensure that a good plan is drawn up, whereby he will no longer be able to fiddle with figures in the future? Judge?

Lawyer

If your ex does not wish to consult, I can submit the matter to the judge on your behalf. The judge will then weigh the situation and record a binding decision for both of you in a ruling.