Child and Spousal support obligations in times of coronavirus
The spread of the coronavirus has led to the disruption of society. In most countries the schools are closed, public facilities are shut down and people are requested to stay inside as much as possible. It goes without saying that this also affects working life. A lot of employees are working from home, have reduced working hours or do not work at all. For some, this has major consequences in terms of their income. Think about the ones that are self-employed and/or small business operators whose assignments are cancelled due to the coronavirus outbreak. It is conceivable that these individuals will experience financial problems when the money stops coming in. This could also be the case for individuals on the payroll of a company, who are facing the threat of losing their job. What does this mean for the obligation to pay child and/or spousal support?
Do not stop your payment of maintenance unannounced
The obligation to pay maintenance remains unchanged. Therefore, you are not allowed to suddenly stop your payment. The child and spousal support arrangements that are rendered by a court order are legally enforceable, meaning that the ex-partner who has a right to child and/or spousal support may collect payments through a summoner or the LBIO (the Dutch National Maintenance Collection Agency). If this does not lead to payment of the arrears, the ex-partner may continue to seize the assets of the debtor. Instructing the LBIO might be the only option for those ex-partners who are completely dependent of the alimony payments. They will face direct problems when the payments are ended effective immediately.
It is, therefore, of the utmost importance to contact the ex-partner as soon as possible in order to discuss the payment difficulties. It might be possible to differ from the current alimony arrangement in joint consultation. Alternatively, a reduction in child and/or spousal support or a minimum contribution could be agreed upon. Please be advised that a changed arrangement should always be made in writing in order to prevent conflicts at a later stage.
During discussions with the ex-partner it is important to be open about the income that is – or will be – available on short notice. For those who are self-employed or run a small business in the Netherlands, it will be possible to request social assistance from the 1st of March 2020 for a period of three months. This is made possible through a temporary bridging arrangement from the government, called “Tozo”. Paid employees have a right to receive 100% of their normal wages under the emergency measure called “NOW” for a period of three months which can be extended for an additional period of three months. As a result, there will be no direct loss of income for this group. This will change in case of unemployment, for example, when a contract is not renewed.
Child support has priority over spousal support.
The law determines that child support has priority over spousal support. This means that when the contributions are determined the amount for child support will be set first. From the financial capacity that is left spousal support can be paid. This does not mean that only the child support payment must be made when the income of the maintenance debtor is insufficient. However, this rule of preference can be guiding during discussions with the ex-partner, for example, check in which way the costs of the children can be covered as much as possible. Here it is also important to know whether or not there is available wealth of which the costs of the children can be paid.
Variation of maintenance proceedings
If financial problems continue to exist and it is impossible to come to an adjusted arrangement with the ex-partner, a variation of the maintenance obligations may be requested through court procedeedings. The grounds for this are in a change in circumstances, which in this case would be the loss of income due to the coronavirus and its consequences. It is important that the loss of income relates to a long-term period. If income is restored shortly after the prevalence of the virus has been reduced, then there is no major change of circumstances that may lead to a successful variation of the maintenance obligation.
The court does not only determine if the loss of income is culpable, but also if this loss of income can be restored. The income loss will not be qualified as culpable if this is the result of the coronavirus outbreak and the economic consequences. The answer to the question whether or not the former income can be restored is dependent on the circumstances of each case. For example, it will dependent on the branch in which you were employed, how seriously this branch was affected by the coronavirus crisis and the number of entrepreneurs that are working in the same branch in the same region.
Do not stop paying child and/or spousal support immediately
The coronavirus outbreak can have immediate consequences for one’s income. This may lead to financial difficulties regarding financial obligations, such as payments of child and/or spousal support. Do not stop paying immediately and prevent further problems by discussing an alternative solution with the ex-partner. If this does not lead to any result, variation of maintenance obligations can be requested through court proceedings. Please be advised that currently courts are closed and it may take considerable time before a case will be heard by the court due to the current situation.
Contact one of our family lawyers for more information. The lawyers of Delissen Martens can also be reached during these difficult times at +31 70 311 54 11.
