When determining child support, determining the parents' carrying capacity is an important part. Portability is the amount that the alimony payer can meet monthly, while taking into account that he/she can also continue to support him/herself. The maintenance payer is obliged to make an effort to generate such an income that he/she can meet the maintenance obligation. If there is culpable loss of income, the court may disregard this. Imagine that the paying party has an income of €5,000.00 and then chooses to resign, then this will be considered a culpable loss of income. The court will then continue to calculate with an income of €5,000.00 to determine the paying party's ability to pay. But in case the court finds that the loss of income cannot be blamed on the paying party, the court will take into account a new, lower income.
In a recent ruling ( 19 April 2023), the Zeeland-West Brabant District Court ( ECLI:NL:RBZWB:2024:2643) ruled on child and adolescent maintenance. This case revolved around the question to what extent loss of income caused by reprehensible behaviour of one of the maintenance obligated parents should be taken into account.
Background to the Case
Twins were born from the parties' marriage in 2005. In 2022, the parties effectively separated and have since been embroiled in divorce proceedings. The husband has since found a new partner. On behalf of the two young-older children, the wife applied to the court to determine the husband's contribution to their education and living expenses.
The dispute
The dispute revolved around the income to be taken into account when determining the woman's ability to pay. The husband argued that the gross annual income the wife had until recently, i.e. €56,122, should be taken as the starting point. However, the woman indicated that her current income was an unemployment benefit of €3,253.50 gross per month, after her employment at a bank was terminated. This termination was due to unauthorised access to account details of the husband's new partner.
Court considerations
The court found that the wife's dismissal from the bank was the direct result of her own reprehensible conduct. She had, without business reason, accessed the account details of the husband's new partner. And that violated the bank oath she had taken. The court found that the woman had not put forward any plausible grounds that should lead to a conclusion other than that she herself was responsible for her loss of income.
Since the loss of income was self-induced, the court had to assess whether she could reasonably regain her former income. In doing so, the court took into consideration that the woman had now received a settlement from the Disciplinary Tribunal for Banks and that her name would be included in the Register of Disciplinary Tribunals for Banks, which would seriously hinder her from finding a job in the financial sector.
The ruling
The court found that the woman's loss of income was partially recoverable. The woman herself had expressed her belief that she would regain income from employment in the foreseeable future. Taking these circumstances into account, the court ruled that an income of €50,000 gross per year had to be taken into account to determine the carrying capacity.
Conclusion
This ruling underlines the importance of a maintenance obligated parent's own conduct when assessing their ability to support. It shows that reprehensible behaviour leading to loss of income does not simply lead to a reduction of the maintenance obligation. Whether and to what extent loss of income is taken into account always depends on the specific circumstances of the case. This applies, incidentally, in situations involving spousal support.
Do you have questions about child and adolescent alimony or partner alimony, or are you involved in an alimony dispute? Contact SPEE lawyers & mediation for expert legal advice and guidance. Our family law lawyers Mr Marion van Acker and Mr Angelique van den Eshoff are at your service.