Getting a divorce is any country is an extremely difficult process, but if you are living abroad, the legalities involved can be especially complicated. The second part of our two-part series focuses on six key issues to consider when going through a divorce in The Netherlands.
If parents are not able to come to an agreement about the children themselves, the Dutch judge will have jurisdiction to rule over the children when they have their habitual residence in the Netherlands. In general, Dutch law will be applicable. The nationality of the children does not play a role. By default, under Dutch law, both parents retain joint custody of their children. In principle, they will have an equal share in taking care of the children but this does not automatically imply co-parenting (50/50).
Until a child reaches 21 years, generally both parents are financially responsible. If the parents are not able to come to an agreement, the judge will rule using a certain calculation system.
Division or Settlement of Matrimonial Property
It is not possible to give a general answer on how matrimonial property is dealt with in divorce proceedings if you are an expat. The result will depend on a number of factors, such as the year you were married, the country in which you married, the first (joint) habitual residence after the marriage, and the duration of your stay in the Netherlands.
Prenuptial agreements (huwelijkse voorwaarden) are respected, unless the content is contrary to public order or morality. It is in your best interest to get expert advice before filing for divorce or going through mediation because the consequences of a small mistake can be big.
Negotiating Alimony or Child Support
In general, a spouse can apply for spousal support (alimony) during or after divorce proceedings. If Dutch law is applicable, it needs to be investigated if there is need for support and if the other spouse is able to pay. The current maximum duration of spousal support is 12 years after the registration of the divorce verdict, unless the duration of the marriage was shorter than five years and no children were born from the marriage. In such cases, if applicable, spousal support needs to be paid only as long as the marriage existed.
In negotiation or mediation, it is possible to make other arrangements about the duration, amount and other conditions of child alimony. The Dutch government, however, is planning reforms in the upcoming years that will change the conditions for spousal support.
If Dutch law is applicable to matrimonial property, Dutch law will typically also apply to pension rights. It needs to be determined whether the pension rights were built in or outside the Netherlands and how to deal with them in divorce.
Your Dutch Residency and Citizenship
Dutch citizens, EU citizens and anyone with a residence permit in their own name will retain the right to remain in the Netherlands after a divorce. However, if your residence permit is a spousal permit, typically tied to your spouse’s job, you will have to apply for a Dutch permit in your own name if you wish to stay in the Netherlands. Consult your lawyer as part of the divorce mediation, particularly if you are considering a formal separation, as this may also affect your residency rights.
It is possible to return to the name you had before you married. Under Dutch law, it is also possible to keep your married name after the divorce. If your spouse does not accept that, the judge can be asked to rule on this subject. By default, the children keep the name they were given at birth. There can be other possible outcomes if arranged as part of the divorce settlement and authorized by the judge.
Pauline Montanus is one of seven partners of the niche international family, juvenile and inheritance law office SCG Advocaten. They have an office in Amsterdam and in Eindhoven and are twelve lawyers total. Pauline’s practice focuses mainly on complex divorce and divorce-related cases involving children in need, international aspects (including child abduction) or where child protection measures are concerned.