Divorce or termination of cohabitation?
Is your relation over? How do you arrange that termination and its consequences for you, your partner or potential kids? With all these questions you are on the right address with our firm. We have years of experience in divorce and termination of cohabitation cases.
Prenuptial or cohabitation agreement?
A divorce requires approval of a judge and therefore you need an attorney. When you want to terminate a cohabitation agreement such a procedure is not necessary, but some agreements of that kind include procedural provisions on the method of termination and the consequences of such a termination. When you got married with a prenuptial agreement this can mean that in that agreement several things have been arranged.
Cohabitation or prenuptial agreement, there can always be a mutual household. When that is the case, what is the size of that household? Is there a case of exclusion of all community or does that community of goods exist? Does the income have to be divided? If yes, only once or every month/year? How does it work with insurances and pensions?
Outside of the formal aspects of a divorce or termination of a relation alimony can play a role. When under aged children are involved, child alimony has to be paid. Although the government is of the opinion that such alimony can be calculated fairly easy by the parents, practice shows differently. The working group alimony norms has drafted an extensive report on the calculation of alimony. We can summarise this for you.
Height of the alimony, the need of the child
In short, the need of the child comes in first place. How much did they have back in the time that their parents were together? This is determined on the net income of both parents over the last year that they were together. On the internet need indexes can be found which show the need of a child, indexed on the family income.
When the need of a family is determined the next step is to look which parent needs to fulfil which part of that need. Are parents able to fulfil that need or did their income drop, so they cannot? How does the money that is available be divided?
Height of the alimony, financial strength
Also the financial strength has to be determined according to the rules that have been created for that. How that calculation must be made can be found on the internet and depends on the net spending limit of all parties after the divorce. A large amount of circumstances is relevant for this. How is the care for the children divided? Which parent has registered the kids to be living with him/her? Do they receive child bound budget and if yes, who receives this?
Some circumstances are deductible, others are not. Some amounts are determined by real costs, other by fictional amounts (e.g. living costs). In that case the real living costs are not determined, but what they should be based on their income. But what if the real situation differs greatly from that situation and can you do something about that?
As you can see the calculation of child alimony is no easy task. It is even more complicated when they are entitled to partner alimony. How do you have to cope with that in relation to the financial strength of the paying parent? Can he pay both the partner and the child alimony? How high must that sum be? How does the judge have to deal with new partners or even new children?
Not married, but partner alimony?
You do not have to be necessarily married to be entitled to partner alimony. Under circumstances you can, also when you cohabitated, be entitled to partner alimony.
Contact arrangement for the children
How do you arrange the contact with the children, which also has direct influence on the height of the child alimony? Indeed, when the non-caring parent still takes care of the children for 2 or 3 days, he gets a discount on the alimony. The contact can contribute to all kinds of issues. Who takes care of the children? Who gets and brings the children to all kinds of activities? Who pays for those costs?
Both the determined child alimony and the contact arrangement have to be obtained in the parental plan. The law stipulates that when parents of under aged children divorce, they have to draft a parental plan in which they arrange the issues around the children. Besides the alimony and the contact arrangement more issues have to be arranged in the plan.
There are many issues that will cross your path, even though you think you will not encounter them. What if the other parent gets a new partner? How do you tell the children that you are divorcing? Are the children involved in the parental plan and the contact arrangement? Who takes the children to the dentist or barber? Who buys the presents or necessary attributes for sports and music lessons? All these small matters seem unimportant, but it is necessary to think about it and discuss it with your partner.
Also when talking with your former partner seems difficult, it is wise to do so when you have kids. Make detailed agreements, which can save lots of arguments and make life easier for the children.
Division of the household
The last thing to arrange is the division of the household. The first question concerns the existence of a mutual household, based on a cohabitation agreement or prenuptial agreement. When one of these exist, the size of the household has to be determined, after which a value has to be put on that household.
It is important to do this carefully. If one of both partners gets an advantage, tax authorities could check whether that can be determined as a donation over which tax has to be paid.
Divorce in mutual agreement or divorced in open conflict through a judge?
The best thing would be to arrange all mentioned issues with mutual consent. All parties get what they want. The other option is that a judge makes the decisions and that all parties have to deal with that.
It is a misconception that every divorce which is under guidance of attorneys will turn out to become an open conflict. Nothing could be less true. Through a mutual or separate attorney or through a mediator proper solutions can be agreed upon. All three roads lead to an amicable solution.
When both parents have their own attorney they can discuss all demands on paper with their own lawyer before starting negotiations of talks with the partner. You can do this via paper or through a fourway conversation. This would mean that you are not diametrically opposed from each other, but you are represented in the best way possible. That feeling often lacks when using a mediator. The determining factor is whether you seek a solution together or only in your best interest. We assist you gladly in these decisions.
When you cannot conclude any agreement between parties, the judge necessarily has to do so. Legal proceedings have to start and an attorney is always needed. We also have experience with these kind of situations.
For questions about legal assistance with the mentioned issues you can contact Smart Advocaten.