At the request of a person entitled to maintenance, a court may determine the amount of child or spousal maintenance or increase an existing maintenance obligation at a later date on the grounds of changed circumstances. At the request of a person liable for maintenance, a court may reduce the maintenance amount or even set it at zero. Again, this is only possible if there are changed circumstances.

It is common for the person making the request to also ask the court to determine the maintenance with retroactive effect, i.e. before the date of the ruling. In that case, the court will not only have to (re)determine the amount of maintenance, but also the date on which this change takes effect.

Commonly used effective dates are the date of filing the petition or the date of the ruling. The reason for this is that the person liable for maintenance or the person entitled to maintenance could have taken into account that the maintenance would change from these dates.

A court must be cautious about awarding an effective date that lies in the past. This can have far-reaching consequences. If the maintenance is increased, the maintenance debtor will immediately be in arrears on the date of the ruling (the amount he or she has underpaid). If the maintenance is reduced, the maintenance creditor must repay an amount to the maintenance debtor on the date of the ruling (the part he or she received but was not entitled to).

What can a court take into account when granting retroactive effect?

A court cannot simply determine (amended) maintenance with retroactive effect. It must be assessed to what extent it is reasonable for a (re)payment obligation for maintenance to arise. The circumstances of the case are important here. A judge will have to assess on a case-by-case basis whether it is reasonable for the maintenance to be (re)determined with retroactive effect. The following circumstances may play a role in this.

For retroactive effect to be granted, it is important that you knew or should have known that your ex-partner wanted to change the maintenance. In that case, you could have taken this into account. If you wish to change the maintenance, it is important to inform your ex-partner at an early stage that your financial situation has changed. From that moment on, your ex-partner can take into account that the maintenance may be changed. It is preferable to do this in writing. You should then also initiate proceedings as soon as possible if your ex-partner does not agree to your request.

If you are faced with a (re)payment obligation, it is important to demonstrate that you do not have the financial means to meet this obligation.

If, as the person entitled to maintenance, you have to repay an amount due to retroactive effect, you can argue that you have already spent the maintenance received. Maintenance has a consumptive nature and is normally spent on the children or on the maintenance creditor themselves when it is received.

Other factors that may be relevant include the amount of the (re)payment obligation, the income and assets of the parties, and whether the initial assessment of the need or ability to pay was too high.

What does case law say about this?

Here are a few examples from case law in which a court has determined the effective date of maintenance or a retroactive change in maintenance:

• Child maintenance was reduced because the person liable for maintenance had a child with their new partner. The court determined that the reduced child maintenance could be paid from the first day of the month following the month in which the new child was born. The court ruled that the maintenance creditor was aware of the expected birth of the child in advance, that the change was foreseeable and that she could take a change in maintenance into account from that moment on. It was incumbent upon the maintenance creditor to set aside part of the child maintenance she was to receive (ECLI:NL:RBOBR:2022:2268).
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• The court ruled that the child maintenance would be reduced from the first day of the month after the maintenance creditor received her first salary and thus became financially capable of paying. She did not inform the maintenance debtor that she had an income. The court ruled that she is also obliged to maintain the minor child and that it was therefore her responsibility to inform the maintenance debtor of this in good time so that he was able to independently assess whether the child maintenance should be changed. This applies all the more so since the current maintenance was determined solely on the basis of the maintenance debtor's income, because the maintenance creditor had no income at that time. The maintenance debtor therefore paid more maintenance than he should have done from the moment the maintenance creditor started earning an income. Despite the consumptive nature of child maintenance, the court ruled that the maintenance creditor had to repay the excess maintenance paid. It has not been argued or established that the woman is financially unable to do so (ECLI:NL:RBROT:2022:11217).
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• The court ruled that the child maintenance was reduced from the date on which the maintenance creditor remarried. This means that her partner has become the step-parent of the children and must also contribute to the costs of their care and upbringing. From the date of the marriage, the person entitled to maintenance could have taken into account a change in circumstances that justified a reduction in the child support (ECLI:NL:RBROT:2024:7446).
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Conclusion

Determining or changing child support or spousal support with retroactive effect can have major consequences. The person liable for maintenance or the person entitled to maintenance may then be faced with a substantial claim. The court cannot simply determine a change in maintenance with retroactive effect.

Experience shows that courts deal with this differently depending on the circumstances of the case. If you, as the person entitled to maintenance, submit such a request to the court, this request must be well-founded. If you are the person liable for maintenance and are faced with such a request, it is important that you put forward a well-founded defence. You must indicate why it is unreasonable to grant or reject this request. It is therefore important what the parties argue during the proceedings.

If you intend to have child support or spousal support determined or changed, or if you are faced with a request for change, it is wise to seek legal advice about your legal position. At SPEE lawyers & mediation, we have many years of experience in family law. Please feel free to contact us for expert advice! Contact page SPEE advocaten & mediation.