Divorce: What about the children?

Do you have a family and are you splitting up? Then agreements will have to be made about the children. Monique Beijersbergen of SILK Attorneys & Mediators explains what has to be arranged regarding the children.

Applicable law

As long as the children reside in the Netherlands, Dutch law is applicable to the related consequences of the divorce for them, regardless of the nationality of the parents.

Parenting plan

According to Dutch law, parents who are getting a divorce are obligated to draw up a parenting plan. An agreement must be reached in person, or by the use of a mediator / attorney, and then submitted to the court.

In general, the court will not pronounce the divorce requested by one or both of the parties with minor children until a parenting plan has been drawn up. Only in exceptional cases - if it is substantiated why the submission of a parenting plan is not reasonably possible - can this be deviated from.

The parenting plan needs to contain at least the following issues:

• The division of care for the children
• The way in which parents inform and consult each other about the children
• The way in which the costs of the children are provided for

In addition, it is intended that the agreements in the parenting plan will be discussed with the minor children. The way this is done is of course age-dependent, but should, in any case, remain part of the parenting plan.

Parental authority

According to Dutch law, the shared parental authority that exists during the marriage remains after the divorce. This means that the parents will have to make decisions about the children together. This concerns decisions on the main residence of the child, a move within the Netherlands or abroad, the choice of school, medical treatment, passport application etc. Only in exceptional cases will the judge decide in the interest of a child that only one of the parents will have parental authority after the divorce.

Main residence

Everyone has a main residence, children included. The parents will have to determine with which of them a child has his or her main residence. In general, that parent is entitled to receive the child benefit.

Visitation rights

The general rule of Dutch law is that children and their parents have a fundamental right to have contact with each other. The parents will have to agree on when the children will be with each parent. How this contact should take place is left up entirely to the parents. If they cannot agree, the court can be asked to decide.

Child support

Parents of children up to the age of 21 are legally obliged to provide for the care and upbringing of their children. This responsibility continues to exist after parents separate. The basic principle is that children should not suffer financially when their parents separate. In order to determine the amount of child support, it is first necessary to determine what the children cost per month. This is called the need of the children.

The calculation for child maintenance is different for international families (expats) and is determined according to the costs of the children. Once the need has been determined, it is necessary to see which of the parents should provide for this need and with what amount. This is calculated on the basis of the income of the parents after the divorce and is called the financial capacity.

This capacity is calculated according to a fixed formula based on the net income after the divorce, a fixed housing cost (of 0,3 of the net income) and a fixed monthly amount that parents may reserve for themselves. This fixed monthly amount is the same for each parent and is set at an amount around the social security level.

After the financial capability has been determined, it needs to be considered how often a child spends time with the parent who will be paying the child support to the other parent. The more a child spends time with that parent, the more that parent already provides for the costs of the child (food / drink). This translates into a discount on the child support to be paid. This discount varies, depending on the care time, from zero percent to 35 percent of the children's needs.

Child support must be paid monthly. If parents opt for a co-parenting arrangement, proper agreements will have to be made as to who will bear the costs of the child. In practice, we see the following two options:

Children’s account

The parents open a so-called children's account which they both manage and into which they pay an amount every month. From this account, the costs of the children's stay that go beyond the children's stay are paid. Costs that go beyond the stay of the child are costs that are not related to where the child stays. Think for example of costs for clothing, school, sports, etc.

Designated parent

The parents designate one parent who is financially responsible for all expenses on behalf of the child. The other parent pays a monthly contribution (child maintenance).

The child support is increased as per January 1 each year with an annual indexation percentage set by law.

Monique Beijersbergen is an expert in family law and international divorce for SILK Advocaten & Mediators. If you separate or are in the middle of a divorce and need advice or assistance, please contact her.