Calculating spousal support can be complex, especially when a business is involved. It can also be unclear whether debt repayment should be taken into account.

How is it determined whether spousal support is necessary and how much the person liable for maintenance should pay?

In order to determine whether and to what extent one of the spouses is in need of spousal support, the spouse's own income must be deducted from the marriage-related needs (the needs of the spouses based on their standard of living during the marriage/registered partnership). If the person entitled to maintenance does not have sufficient income to provide for his or her own livelihood, consideration is given to what income this person can reasonably earn. The person entitled to maintenance must make sufficient effort to earn an income. In doing so, all circumstances of the case must be taken into account, such as education, work experience, health, age and any childcare responsibilities.

Once this need has been established, the financial capacity of both spouses is considered. This is what they can currently afford to pay in maintenance. This is used to determine whether the person liable for maintenance is able to pay spousal maintenance.

How are debts taken into account when determining spousal maintenance?

In principle, debt repayments are taken into account when determining financial capacity, provided that these debts are unavoidable and not culpable. If a debt can be repaid from savings or other assets, it is avoidable. A culpable debt is one that has been incurred without good reason. Could the person liable for maintenance have prevented this debt?

It is not always easy to determine whether a debt is avoidable and culpable. The person invoking the existence of the debt will therefore have to provide sufficient evidence and proof. There have been many court rulings on this matter.

Debts that are not culpable and not avoidable are included in the financial capacity calculation as a necessary expense.

Recent ruling

On 26 August 2025 (ECLI:NL:RBZWB:2025:5789) , the Zeeland-West-Brabant District Court ruled on whether or not to take the repayment of a debt into account.

In this ruling, the person liable for maintenance (the man) argued that he had a debt with the Tax and Customs Administration that he was repaying on a monthly basis. He argued that these monthly repayments should be taken into account when calculating his financial capacity.

The court’s decision

The court ruled that the tax debt cited by the man should not be included in the financial capacity calculation as an unavoidable and non-culpable burden. It follows from the man's arguments that the tax debt arises from regular taxation of profits previously earned from his business. The man chooses not to pay this tax in the year in question, but at a later date. The man has not demonstrated that he is compelled to do so.

The man therefore actually pays the regular tax each year on the profits earned in a previous year. The court is of the opinion that there is no “debt” in the sense of an additional payment on top of the regular tax payment, but that in this case there is a deferred payment. If this “debt” is taken into account in the calculation of the man's financial capacity, it is in fact taken into account twice: once when determining his net disposable income and then again when determining his financial capacity. The court disregards this “debt” when calculating the man's financial capacity.

Conclusion

As the above ruling shows, it depends on the circumstances of the case which factors the court takes into account when calculating spousal support. Reasonableness and fairness must also be considered.

If your ex-partner has submitted a request to the court to determine spousal support, or if you wish to make such a request, it is wise to seek legal advice from a solicitor specialising in family law.

At SPEE Solicitors & Mediation, our solicitors and mediators have many years of experience in family law and, specifically, in family law for entrepreneurs. Please feel free to contact us for expert advice.