A mutual request for divorce requires the following with respect to your nationality:
Both of you have been residing and have been registered with a municipality in the Netherlands for at least 12 months
If one of you does not have a Dutch nationality, the one with a Dutch nationality should be a resident of the Netherlands and should be registered with a municipality in the Netherlands for at least 6 months
When you and your partner divorce, basically both of you are entitled to half of the possessions and both of you are obliged to half of the debts. In order to divide the community of goods properly, it is advised to draft a settlement agreement or covenant, stating the division like both of you have agreed upon.
If documents attached to the mutual request are written in a foreign language a certified translation into Dutch of the document is also required.
The prenuptial agreement can vary widely, but in general includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. It is advisable to read the exact content of the prenuptial agreement. Be aware that there can still be a community of goods, like goods that you have acquired together during your marriage, mutual bank accounts or debts, which need to be divided.
You are both allowed to agree to deviate from the provisions of the prenuptial agreement. 5
Registered partners have the same rights and obligations as married couples. Though in general dissolving a registered partnership is easier. A statement declaring the dissolution of the registered partnership edited by a civil notary or a lawyer will be sent to the registrar of your residence. The registrar will register the dissolution of the registered partnership in the municipal personal records database (Gemeentelijke Basisadministratie, GBA) and/or the Department of Civil Affairs (Burgerlijke Stand). Please note, that in case you have a settlement agreement or divorce covenant such agreement will only be enforceable if it is drawn up by a civil notary or when the registered partnership is dissolved in court. If there are minor children, the registered partnership can only be dissolved in court and a parenting plan needs to be drawn up and added to the settlement agreement/divorce covenant.
In general a cohabitation agreement is drawn up when property (i.e. house) is bought. Practice has often shown that it concerns a standard agreement, which does not contain any provisions referring to the ending of the cohabitation. Should both of you wish to come to an agreement with respect to ending the cohabitation, Tara Mediation can assist you drawing up the mutual agreements and put these in a settlement agreement with respect to ending the cohabitation or refer you to a civil notary in order to have a settlement agreement with a writ of order.
Once you are divorced there is still the obligation to support your ex-partner and/or children. This is called the maintenance obligation. This obligation is met if a contribution is paid to the provision of food, clothing and other basic necessities of life also known as alimony. In general alimony consists of a certain amount of money. If one of the ex-spouses for example is paying the rent and utility bills for the other, then it is considered alimony in kind.
A maintenance obligation is applicable between
Useful in determining child support is to see to it that the child will not be worse off. Should you both come to an agreement with respect to the amount of child support, a judge will examine if this amount is acceptable and not too low. Should you not come to an agreement with respect to child support then the judge will determine the child support based on income and fixed costs.
In general after a divorce children live with one of their parents. The parent not taking care of the children is obliged to take care for them financially. This is done by paying a certain amount of child support. The obligation to child support needs to be fulfilled until the child can be financially independent or has reached the age of 21 years. Whether or not child support is required for children between the age of 18 and 21 depends on the fact whether or not these children are able to sustain themselves. In case of a physical or mental disability parents might also be obliged to support their children financially at the age of 21 years and older. You and your (ex-) partner can agree upon the amount of child support, but when under aged children are involved the judge will always review the amount the both of you have agreed upon. It is also important that the agreements on child support are written in a document.
Should you not be able to come to an agreement, a judge will determine the amount of child support. The judge will also determine when payment needs to be done and which conditions need to be met.
When determining the amount of child support it is very important that the child is as less worse off as possible.
The judge determines the amount of child support in three steps:
Paid child support is not deductable. Nevertheless, it is possible to mention a certain amount spent on child maintenance as a personal deduction. If you spend in 2012 at least 408 per quarter/ 136 per month on maintenance (food, clothing, sports) for a child younger than 21 years, this deduction can be applicable.
For the conditions and further information you can contact the Dutch Tax Authorities . The Dutch Tax Authorities can pay extra attention on the deduction Expenses on maintenance children younger than 21 years (i.e. 'Uitgaven voor levensonderhoud kinderen jonger dan 21jaar'). This means that you can be approached with questions to check if you are entitled to use these deductions and if the amount of deduction has been calculated correctly. You will receive a questionnaire of the Dutch Tax Authorities. You might be asked to explain why you were not entitled to a child allowance or why your child was not entitled to student grant (studiefinanciering). You can also be asked to show invoices or proofs of payments referring to the costs of child maintenance.
Please note that as of January 1st, 2012 the age of the child with respect to child maintenance as a personal deduction has been lowered from 30 years to 21 years.
No, in contrary to partner alimony child support is not taxable for the parent who takes care of the child.
Yes, but the duration of the obligation for payment of child support equals the duration of joint parenthood.
Partner alimony is a contribution to the maintenance of your partner. This obligation comes into existence when the incomes during the marriage vary significantly. You are free to make agreements with your ex-partner with reference to the amount and the duration of the partner alimony. Important is the way you record these agreements. If you should not be able to come to an agreement, a judge will determine the amount and duration of the partner alimony for you. The judge makes use of the following principles: need, earning capacity, financial capacity. The calculation of the financial capacity points out whether or not the one obliged to pay alimony can pay the desired alimony. Alimony can only be paid at least for the amount the financial capacity allows.
If one of the divorcees should apply for a social allowance, the municipality will investigate whether or not the ex-partner is paying a reasonable amount of alimony. The municipality can use her right of recovery. Should appear that more alimony should have been paid, the municipality can redress this amount with the divorcee obliged to pay alimony. Both child support and partner alimony, unless agreed differently, are yearly legally indexed.
You can both come to the agreement that no alimony will be paid. You should be aware that a zero stipulation cannot prevent the Social Services a right of recovery.
Yes, the social allowance paid by the municipality to your ex and redressed to you is deductable.
The maximum period for partner alimony is 12 years. If the marriage or registered partnership was 5 years or less and there were no minor children, the period of partner alimony equals the duration of the marriage or registered partnership.
Events which can be of influence on the on the income or the financial capacity, can be a reason for an alternation. For example:
Should there be an altering event, you can file a request for alteration. Subsequently a judge can determine a new amount of alimony. Please note, that the judge will examine critically whether or not you are to blame with respect to alteration of you personal situation. In other words: accepting a job which pays significant less in order to get a favourable alimony agreement, will not be successful. The judge based his decision on wrong data. Is het possible to redetermine the alimony?
Yes, should be evident that the judge made a decision based on wrong or incomplete data, a new determination of alimony will be given.
Paid partner alimony is entirely deductable as a personal deduction in box 1. Due to a verdict of the Supreme Court of the Netherlands of February 2009 it is still per 1 January 2009 possible to mention future partner alimony to be paid as a debt in box 3. However, per end set date 31 December 2009 it cannot be taken into account anymore as a debt. New legislation preventing this has come into force as per 30 December 2009.
Alimony payments, whether or not in kind, are with respect to income tax deductable for the paying party as expenses with reference to income provisions and will be taxed with the receiving party.
An alimony redemption sum is deductable in case of divorce as a maintenance provision for the party paying the alimony. This is not applicable in case of separation from bed and board.
The alimony redemption sum is taxed for the receiving party, whether divorced or separated from bed and board.
Yes, an extension is possible provided that such request is done at the latest within 3 months after the due date. Please note that only in case of special circumstances a judge will grant a request for extension.
General information
During a marriage or a registered partnership or cohabitation there is often a community of goods. The accrued community of goods, also called estate or balance of the community, is divided in case of a divorce. Basically both of you are entitled to half of the balance of the community (assets minus liabilities).
Tara Mediation can guide you to come to a division which meets your desires at best possible.
Some divisions (i.e. real estate, shares in a partnership) require the intervention of a lawyer according to Dutch law. Tara Mediation can refer you to civil notaries in her network.
Should you come to an agreement in which one of you will receive beyond 50%, you should take into account that everything you receive beyond 50% of the community of goods maybe considered as a donation by the Dutch Tax Authorities, a donation which will be taxed (schenkbelasting). On the website of the Dutch Tax Authorities you can find a tool which you can use to calculate the amount of tax due.
Should one party be receiving more than 50% in order to meet an urgent obligation of morality and decency, no amount of tax is due.
The Dutch Tax Authorities can also consider an apportionment beyond 50% as redemption of alimony, which has a fiscal consequence for the party entitled to alimony: the partition beyond 50% will be taxed as income. For example you have come to an agreement that one of you receives 65% of the community of goods. The value of the extra 15% will be taxed as income.
You are allowed to take over the debt, but the creditor needs to be notified properly. Just to be sure, you could send the creditor a copy of the decree of divorce with the attached covenant, containing this agreement.
As long as the bank is not notified about this, your ex-partner is allowed to use this account. It would be advisable to inform the bank swiftly. Creditors have the right to recover his/her part. Should your ex-partner for example go bankrupt after the divorce, his or her share of the bank account will become part of the bankruptcy.
It is recommendable to view the mortgage deed. Sometimes both of you are jointly and severally liable. In case only one of you has entered into a mortgage loan or credit, the other party is only jointly and severally liable for 50% once the divorce has been finalized.
Should you both have come to the agreement that the private housing is allotted to one of you, the mortgage debt is for account of the allottee. The other party should subsequently be exempted from his or her liability.
Sometimes the mortgager does not provide the exemption, because the house has an undervalue. The bank will then for example only provide an exemption of joint and several liability when another mortgage and/or modification of the amortization is proposed. Should you agree upon this, please note that it involves extra costs. These extra costs should be divided by half, unless otherwise agreed upon.
Should you prefer to redeem the mortgage in full, please note that it might involve a penalty for advance redemption. Possibly you might negotiate with the bank. Also with reference to this matter it would be recommendable to record the agreement with respect to dividing the penalty in a covenant.
Should one of you stay in the rented house, you could mention this in the covenant by stating that the right to rent is assigned to you. The lawyer will also mention the request for assignment of the right to rent in the mutual request for divorce. The assignment of the right to rent will also be mentioned in the divorce decree.
general information
As per March 1st, 2009 it is compulsory for parents who have minor children to formulate a parenting plan. One of the reasons for the making of the non-government bill -the law continuing parenting and proper divorce (Wet voortgezet ouderschap en zorgvuldige scheiding)- was to improve the position of minor children in a divorce. As per March 1st 2009 the parental authority also comprises the obligation to develop the relationship of the child with the other partner. A child, who is subject to joint parental authority, maintains the right to equal support and upbringing by both parents.
By means of a parenting plan parents can come to concrete agreements about the way the parenthood will be formed after the divorce and can see jointly to it that the interests of their children is guaranteed.
In the parenting plan the following matters need to be addressed and agreed upon:
Ending a registered partnership with minor children involved is only possible via court and also requires a parenting plan.
When living together and both having parental authority it is compulsory to formulate a parenting plan in case the cohabitation ends. When a parenting plan is not formulated, a judge can delay a decision on the courts own motion with respect to a settlement about exercising parental authority until a parenting plan is formulated.
In the divorce covenant both of you can record your mutual agreement with respect to the costs for your young adult children (18-21 years). As this is considered a jus quaesitum tertio (rights on account of third parties), your mutual agreement with respect to child support also needs to be accepted by your young adult children.
Parents are obliged to pay the costs for maintenance and tuition costs of young adults.
When a judge is about to take a decision about parental authority, minor children aged 12 years or older are being summoned to court for a hearing. A judge is free to determine whether or not children younger than 12 years also should be summoned to be heard. Children are not obligated to appear in court. Adding a child declaration to the filed request for divorce and attached documents could suffice.
In principal the joint parental authority will be maintained after the divorce or after a (dissolved) separation from bed and board. Should one of the parents wish to have sole parental authority, the court must be requested explicitly. Both parents or one of them can request the court for sole parental authority in the interest of the child to determine that parental authority is assigned to him or her exclusively.
Yes, that is possible.
Should the determined agreement concerning parental access not be lived up to deliberately, the parent not complying with the aforementioned agreement can face criminal proceedings for retracting the child from parental authority.
In case of co-parenting the children alternately stay with one parent and with the other. Both parents more or less equally contribute to the daily care of the children, in a practical and in a financial respect. Co-parents divide the costs for the children mutual.
Due to possible income differences between both parents it is of importance to agree upon which costs are taken into consideration for division and agree what the cost-allocation key will be according to the financial capacity.
It is also advisable to open a joint bank account on the shared costs for the children.
When it comes to co-parenting the Social Security Bank (Sociale Verzekeringsbank (SVB)) assumes that the child belongs to the households of both parents. Therefore this implies that both parents are entitled to half of the child allowance The SVB prefers to pay the child allowance to one of the parents; she will first ask which of one you should be paid the child allowance. Both of you need to come to an agreement with respect to the division of the child allowance.
The child related budget is remitted to the applicant of child allowance. Unlike the child allowance, the child related budget is not remitted to both parents.
For more information please contact the Dutch Tax Authorities for free 0800-0543 or visit their website.
The Dutch Tax Authorities pay the child related tax credits to the household of the person where the child(ren) have been registered in the local Personal Data Department (Dienst Persoonsgegevens) or population register for at least 6 months.
In case of divorce or co-parenting, this means that only one parent can receive the child related tax credits for the same child. The Dutch tax subsidising day-care for working parents (Inkomensafhankelijke Combinatiekorting) can be applied for by both parents, provided that both of you have a job.
For more information you can contact the Dutch Tax Authorities for free 0800-0543 or visit their website.
General information
The equalisation of pension rights stands apart of matrimonial property regime. Therefore, the pension rights to be equalized are not part of the matrimonial property according to the Dutch law Equalisation Pension Rights in case of Separation (Wvps). Pension rights are equalized in case of divorce, separation from bed and board and the ending of a registered partnership.
Unless otherwise agreed upon in a prenuptial agreement or in a divorce settlement agreement, old-age pension accrued by the both of you during marriage will be divided between the both of you according to the Dutch law Equalisation Pension Rights in case of Separation (Wvps).
Therefore, it is always recommendable to contact the relevant pension provider(s) to find out what pension rights have been accrued (retirement pension, partner pension, reversionary pension).
The pension provider(s) can explain you exactly what division is best for both of you and can also inform you about the wording you can record in your divorce settlement agreement, in order to prevent unnecessary problems once the divorce has been finalized.
The right to equalization of pension rights is a direct claim on the pension provider who pays out pension or pays out pension as of the pensionable age.
Please note that the pension provider needs to be notified within 2 years after the divorce about the divorce and date of divorce (i.e. the moment the decree of divorce or the decree of separation from bed and board is registered) by completing an established form, which can be requested from the pension provider.
Should the aforementioned condition (notifying the pension provider about the divorce date within two years by completing the established form) not be met, there will be no claim to payment on the pension provider. The person entitled to equalization will have a claim to payment on the pensioner on the commencing date of pension.
The following pensions do not fall within the scope of the Dutch law Equalisation Pension Rights in case of Separation (Wvps): General Old Age Pensions (AOW), Widows and Orphans Benefits (AWW), General Disablement Benefits (AAW), disability pension and Voluntary early retirement benefit (VUT)
Also the special Widows and Orphans Benefits are not equalized. This benefit does not fall within the community of goods. This benefit belongs to the private capital of the spouse entitled to it.
Foreign accrued pension rights do fall within the scope of Wvps. However, the foreign accrued pension rights need to result from the employment conditions. Unlike local accrued pension rights, the person entitled to equalization of the pension rights does not have a claim to payment on the foreign pension provider but on the pension holder.
Yes, the right to equalization of the pension rights only ceases in the following cases:
You can mention in your divorce settlement agreement that you waive your right to equalization of pension rights. It is advisable to contact the pension provider(s) with respect to the right wording and prevent that you will not have a claim for payment on the pension provider.
In the divorce settlement agreement you are allowed to derogate from the agreement like mentioned in the prenuptial agreement. Also here, it is advisable to contact the pension provider in order to find out the best solution and the correct wording to be recorded in the divorce settlement agreement.
In case both of you have come to the agreement that the pension does not fall in the community of goods in a prenuptial agreement, which has been formulated before May 1st, 1995, you should take into account that due to the establishment of the Dutch law Equalisation Pension Rights in case of Separation (Wvps), the accrued General Old Age Pensions (AOW) still need to be divided between you and your future ex-partner. Should both of you still do not wish to divide your accrued pension rights; you must record this agreement in the divorce settlement agreement.
Yes, you are allowed to derogate from the Wvps on the following:
The pension provider needs to receive a certified copy or an extract with respect to the derogating agreement in order to execute the agreement settled by the both of you.
In order to prevent future misunderstanding it is advisable to contact the pension provider to find the solution most favourable for the both of you and the right wording of this agreement to be recorded in the divorce settlement agreement.
Equalization of pension rights does not have fiscal consequences. Only received pension benefits are taxed with income tax. Conversion of pension rights also doesnt have fiscal consequences.
Photography: Christina Stoian
