Mantenimento dei figli nei Paesi Bassi: come viene calcolato?

Dutch child maintenance (kinderalimentatie) is calculated in two steps: first what the child needs, based on the parents’ combined income before separation, then what each parent can afford. The law itself contains no formula; the figures come from the guidelines of the Dutch judiciary (the Trema standards), and when a child lives abroad a foreign law may apply instead.

Below we explain the legal basis, the calculation, the care discount, indexation, changes and enforcement, and what changes in a cross-border family.

What does Dutch law say about child maintenance?

The Dutch Civil Code (Burgerlijk Wetboek, BW) sets the principle, not the amount. Parents must bear the costs of care and upbringing of their minor children according to their means (Article 1:404 BW), and the amount depends on the needs of the child and the capacity of the parent who pays (Article 1:397 BW).

The calculation method comes from the Report on Maintenance Standards (Rapport alimentatienormen), known as the Trema standards. It is written by a group of family judges, the Expertgroep Alimentatienormen, and updated every 1 January. The report is a recommendation, not law: courts usually follow it, but may depart from it where the facts justify that.

How are the child’s needs determined?

The child’s needs (behoefte) are based on the standard of living during the relationship. The guidelines take the parents’ combined net disposable income in the last period before separation and read the total amount for all children from a needs table.

• The table gives one amount for all children together; the amount per child falls as the number of children rises.
• The table does not distinguish between ages; a teenager and a toddler generate the same table amount.
• Structural extra costs, such as childcare, school fees or the costs of a disability, can be added. International school fees are often disputed and are usually only added if the parents agreed to them or the family’s situation justifies them.
• Above a certain income the table stops, and the needs must be shown with an actual list of expenses.

The child-related budget (kindgebonden budget), including the single-parent supplement, is not deducted from the child’s needs. It increases the capacity of the parent who receives it (HR 9 October 2015, ECLI:NL:HR:2015:3011).

Come viene calcolata la capacità di pagamento di ciascun genitore?

Both parents are assessed. The starting point is each parent’s net disposable income (netto besteedbaar inkomen): gross income from all sources minus tax and premiums, plus tax credits and allowances.

The guidelines then deduct a standard housing amount and a standard amount for basic living costs, and treat a fixed share of the remainder as capacity to pay. Actual rent or mortgage costs therefore matter little. Below a minimum income the guidelines apply a fixed minimum contribution, so a parent with a very low income still pays something.

• Earning capacity counts: a parent who stops working voluntarily can be assessed on the income he or she could reasonably earn.
• Debts are only taken into account if they are unavoidable and not incurred by choice.
• Children under 21 have priority over all other maintenance claims, including those of a former spouse (Article 1:400 BW).

Cos'è lo sconto per l'assistenza?

A parent who has the child staying with him or her already pays for food, housing and activities directly. The guidelines recognise this with a care discount (zorgkorting): a percentage of the child’s needs that is deducted from the amount that parent pays.

The percentage increases with the average number of care days per week, including holidays, as recorded in the piano genitoriale. Even with limited contact, a minimum discount is normally applied. The current percentages are in the Trema report published on rechtspraak.nl.

If the parents’ combined capacity is lower than the child’s needs, which is common, the shortfall is shared. Where there is a care arrangement, this can reduce or absorb the benefit of the care discount.

Come viene stabilito il mantenimento dei figli?

I genitori possono accordarsi autonomamente sul mantenimento dei figli, tramite un piano genitoriale o un accordo separato. In caso di divorzio, il tribunale include l'accordo nella sua sentenza; i genitori non sposati possono formalizzarlo con un atto notarile o una sentenza del tribunale, in modo che diventi esecutivo.

Se i genitori non riescono a mettersi d'accordo, uno di loro presenta una richiesta alla sezione famiglia del tribunale distrettuale ( rechtbank ) tramite un avvocato. Il tribunale calcola l'importo secondo i criteri Trema e fissa la data di inizio.

Quando termina il mantenimento dei figli?

Not at 18. Parents must contribute to the living and study costs of their children aged 18, 19 and 20 (Article 1:395a BW), and the young adult does not have to prove need (HR 30 September 2016, ECLI:NL:HR:2016:2234).

From 18 the maintenance is paid to the young adult personally (Article 1:408(1) BW), and any court application is made in the child’s own name. The care discount no longer applies. From 21 a claim is only possible on the general basis of need.

How does annual indexation work?

All maintenance amounts fixed by a court or by agreement increase automatically every 1 January by a percentage set by the Minister of Justice and Security (Article 1:402a BW). The percentage follows wage development and is published at the end of the year on rijksoverheid.nl.

No court order is needed, and the paying parent must pay the new amount without being asked. Missed indexation can be claimed as arrears. Indexation can only be excluded if the order or agreement says so expressly.

Can the amount be changed?

Yes. A court can change or cancel a maintenance order or agreement if it no longer meets the statutory standards because circumstances have changed (Article 1:401(1) BW), for example a change of income, a new care arrangement or the birth of another child.

An order can also be changed if it was based on incorrect or incomplete information from the start (Article 1:401(4) BW), and an agreement if it was made in gross disregard of the statutory standards (Article 1:401(5) BW). The change must be more than minor. Do not reduce payments on your own: unpaid amounts remain enforceable arrears.

What can you do if maintenance is not paid?

You can ask the National Maintenance Collection Agency (Landelijk Bureau Inning Onderhoudsbijdragen, LBIO) to collect it (Article 1:408(2) BW). The LBIO is free for the parent entitled to maintenance; its collection costs are charged to the parent who pays.

• The amount must be fixed in a court decision, which you hand over to the LBIO; a purely private agreement is not enough.
• The paying parent must have missed at least one payment within the six months before your request (Article 1:408(4) BW).
• The LBIO collects arrears from at most six months before the request.
• The LBIO first informs the paying parent by letter and may start collection on the fourteenth day after sending it (Article 1:408(5) BW).

The LBIO can attach wages and benefits. Collection only ends after at least six months of regular payment with no arrears left (Article 1:408(6) BW).

What changes when one parent lives abroad?

In cross-border families, the questions of which court decides, which law applies and how to enforce often matter more than the calculation itself.

Quale tribunale ha giurisdizione?

Within the EU, jurisdiction follows the EU Maintenance Regulation (Regulation (EC) No 4/2009). The child can generally bring the claim in the country where the paying parent lives, in the child’s own country of habitual residence, or before the court dealing with the divorce or parental responsibility.

Parents cannot make a choice-of-court agreement for maintenance owed to a child under 18. See also our article on quale tribunale ha giurisdizione su un caso di famiglia internazionale.

Quale legge si applica?

The applicable law follows the 2007 Hague Protocol on the law applicable to maintenance obligations. The main rule is the law of the country where the child habitually resides; if the child moves, the law of the new country applies from the move.

A Dutch court can therefore apply foreign maintenance law, and a child who moves abroad will often no longer fall under the Trema standards. The Protocol contains fallback rules in favour of the child if the main rule gives no maintenance.

How is a Dutch decision enforced abroad?

Within the EU, a Dutch maintenance decision can be enforced in other Member States bound by the Hague Protocol without a separate recognition procedure (exequatur). The LBIO is the Dutch central authority under the Regulation and can forward requests to its counterparts abroad.

Outside the EU, the 2007 Hague Convention on the International Recovery of Child Support provides a similar system between contracting states. Check the current list of contracting states on the website of the Hague Conference (HCCH) before relying on it.

How is foreign or expat income treated?

The calculation assumes a Dutch salary, so foreign income, an employer housing allowance or income in another currency must be converted to a Dutch net disposable income. This conversion is the most disputed part of many expat cases.

The tax benefit of the expat scheme for incoming employees counts as actual income while it lasts; its expiry is taken into account when it happens. Prepare tax returns and payslips for the relevant years in advance.

Cosa dovresti verificare in qualità di genitore pagante?

Most disputes are about the inputs, not the arithmetic. Check these points:

• That the net disposable income used for both parents is complete and correct.
• That your care days, including holidays, are reflected in the care discount.
• Whether extra costs added to the child’s needs, such as school fees, were agreed or are justified.
• That you apply the indexation every 1 January.
• Whether a change in your income or family justifies a court application under Article 1:401 BW.

Cosa dovresti verificare in qualità di genitore ricevente?

As the parent who receives maintenance, check these points:

• Whether the other parent’s full income, including bonuses and foreign income, was included.
• Whether your child-related budget is treated as your capacity, not as a reduction of the child’s needs.
• That the amount is laid down in a court decision, so the LBIO can collect if needed.
• That indexation has been applied every year.
• Which court and which law apply if you or the child move abroad.

In che modo possiamo aiutarvi con il mantenimento dei figli?

avvocati di famiglia advise parents in the Netherlands and abroad. We can:

• Check a maintenance calculation against the current Trema standards.
• Establish each parent’s net disposable income, including foreign and expat income.
• Negotiate an agreement and include it in the parenting plan.
• File or defend a request to set or change maintenance under Article 1:401 BW.
• Advise on jurisdiction, applicable law and enforcement in cross-border cases.

Sintesi

• Child maintenance is based on the child’s needs and both parents’ capacity (Articles 1:397 and 1:404 BW); the figures come from the Trema guidelines.
• The child-related budget increases the receiving parent’s capacity and does not reduce the child’s needs.
• Parents must also contribute for children aged 18 to 20, who need not prove need (Article 1:395a BW).
• Amounts are indexed by law every 1 January (Article 1:402a BW) and can be changed by the court under Article 1:401 BW.
• The LBIO collects unpaid maintenance laid down in a court decision; abroad, the EU Maintenance Regulation and Hague instruments apply.

Domande frequenti