Making agreements on child support and their consequences
When spouses decide to divorce in the Netherlands (and are legally permitted to do so), decisions must be made regarding the costs of raising and caring for the children (child support). Child support is calculated based on Dutch legal standards using a fixed formula. A lawyer can perform this calculation for you. There are parties who, for various reasons, intentionally agree to a higher or lower amount. It is important to realize the consequences of such an agreement.
Dutch legal standards
The Dutch legal standards for child support are based on the principle that children should be able to maintain (as much as possible) the same standard of living after their parents’ divorce. Child support is calculated based on the needs of the child and the financial capacity of the parents. Dutch child support is determined by court ruling or by agreement between the parents. Parents are, however, not permitted to agree to just anything. For instance, parents are not permitted to agree that no child support will be paid, even in cases where both parents have no income.
Deviating from legal standards
Parents may mutually agree to deviate from the legal standards by agreeing to a higher or lower amount. In principle, agreements regarding child support that deviate from the legal standards cannot be modified afterwards. However, Dutch legislation and case law provide for exceptions to this rule.
Modifying child support agreements
Child support agreements can be modified if the parents have agreed to a lower amount of child support by deviating from the legal standards, thereby disadvantaging the child. If a judge determines that an agreement on child support was made with gross disregard for the legal standards, the judge will independently decide on the child support. Taking those legal standards into account, without being bound by what the parents have mutually agreed upon regarding that support.
Furthermore, if the parties based their agreement on incorrect or incomplete information, it is possible to have the child support modified through the court. This also applies if the parents have deviated from the legal standards in favour of the child and thus agreed to a higher amount.
Finally, it is also possible to modify an amount if it is contrary to reasonableness and fairness, and its maintenance can no longer be required.
The contractual freedom of parents regarding agreements on child support is therefore limited by the mandatory rule that child support must at least meet the legal standards. Parents may still choose to deviate from the legal standards, but it should be noted that the court may modify this in the future.
Non-modification clause
In addition to agreeing on different amount of child support, it is also possible to agree that the child support cannot be modified in the future (a non-modification clause). The Dutch Supreme Court ruled that not all non-modification clauses are permissible. This, like the deviation from legal standards, depends on whether the agreement is in the best interests of the child. If parents agree that a decrease in the financial capacity of the obligated parent or the needs of the child cannot lead to lower child support, then this is a valid clause. However, if the clause stipulates or implies that an increase in the financial capacity of the obligated parent or the needs of the child cannot lead to higher child support, then that clause is void under the Dutch Civil Code.
In summary, while non-modification clauses can provide stability in child support agreements, they must be carefully crafted to ensure they remain compliant with legal standards and prioritize the child’s welfare.
Conclusion
It is always advisable to have the calculation of child support performed by an expert. Parents may still choose to deviate from that calculation or agree to a non-modification clause, but they must consider the consequences of doing so. Parents who wish to deviate from the legal standards for child support should first ensure they are well-informed about the implications of such decisions and seek guidance from legal professionals.
More information
If you have any questions regarding child support, divorce or other family law matters, please feel free to contact us.
