If, as a result of the corona crisis, you lose your job, no longer receive any assignments or see your turnover fall sharply due to mandatory lockdowns, this may mean that you are no longer able to meet your maintenance obligations. Stopping payment is not an option because you will soon be dealing with authorities specialised in collecting maintenance payments such as the LBIO (Landelijk Bureau Inning Onderhoudsbijdragen). You may then be faced with seizure and all kinds of additional costs. What can you do to (temporarily) change the alimony?
The law states that a court decision or a maintenance agreement can be altered or revoked if, due to a change of circumstances, it subsequently ceases to meet the legal standards. In addition, a court decision may also be modified if it did not comply with legal standards from the outset because it was based on incorrect or incomplete information. A maintenance agreement may also be modified if it has been entered into in gross disregard of the legal standards.
When assessing changed circumstances, it is important whether there has been a loss of income which cannot be remedied. If you can rely on support measures taken by the government, it is not necessary that there is a loss of income that cannot be (partially) restored. However, failure to make use of such a measure could indicate a culpable loss of income. It therefore depends on the circumstances of a specific case whether the influence of the corona virus actually justifies a change in maintenance.
A modification procedure will not solve payment problems in the short term because this procedure takes quite some time and you are only allowed to stop or reduce the contribution once the court has decided. It is therefore wise to inform your ex-partner as soon as possible of your changed financial situation and to try to reach new agreements in consultation. Recording new agreements in a court judgment can be achieved much more quickly because there is no need for a court hearing.
If you are unable to reach an agreement in consultation, you can submit a request for a change of agreement to the court, possibly combined with a request for a preliminary injunction for the duration of the proceedings. However, this requires a sufficiently urgent interest, for example if there is a very precarious financial situation so that the outcome of the proceedings on the merits cannot be awaited.
Meanwhile, various judgments have been published in which the court has tried to find a way out of the situation created by corona.
In principle, the corona crisis is regarded as an unforeseen circumstance and in some sectors, such as the hotel and catering industry and the travel sector, it is assumed in advance that the financial consequences will be serious.
The ground for amendment in itself is usually not a problem in proceedings, but a request for amendment often fails due to the lack of the necessary substantiation to arrive at an amended contribution. Entrepreneurs liable for maintenance will have to make clear which government measures (such as the NOW scheme, postponement of repayment obligations and tax payments) can be used and which funds can be withdrawn from the company (reserves). Up-to-date figures and a complete cash flow statement are important. The average company profit over three years is not taken into account, as is usually the case, but the year of the crisis.
Entrepreneurs are usually only granted temporary relief. The judge expects the entrepreneur to return to the same level of income as before the crisis within a year. This term is relatively short and the question is whether this is realistic in practice. The judge places the responsibility on the entrepreneur who is liable for maintenance to start a new procedure if he does not succeed in restoring his income to its former level within the period indicated by the judge.
Do you have any questions or would you like advice on your maintenance obligation? Please feel free to contact one of our lawyers without any obligation. We will be happy to assist you!