Did you know that in July of this year, the Court of First Instance of Curaçao established “Child Support Guidelines”? These guidelines are intended to contribute to the predictability of the outcome of child support proceedings in Curaçao. The law itself does not contain any specific instructions on how child support should be calculated, except that need and ability to pay play a decisive role.
Need and ability to pay are open norms, meaning that legislation does not define exactly what these concepts entail. The guidelines currently serve as a framework for interpreting these norms. Naturally, a judge may deviate from the guidelines if the specific circumstances of a case justify doing so. If a situation arises that is not covered by the guidelines, the judge will decide in equity (fairly, according to the law, and based on conscience). It is therefore very important to present specific or unforeseen circumstances in a timely manner and, preferably, to substantiate them with documentation.
Although the concepts of “need” and “neediness” are closely related, it is important to distinguish between them. Everyone has needs, but a person is only considered needy if they are unable to meet those needs independently. It is important to know that child support is payable regardless of the neediness of a minor or a young adult. In the guidelines, the court has determined the need of the minor. These amounts include monthly school costs, clothing, recreation, and parties. As a result, the judge will not take into account the actual costs claimed for school, clothing, recreation, and parties. Special expenses incurred for the benefit of the minor—such as (after-school) childcare, extraordinary transportation costs, tutoring, and non-reimbursed medication—are not included in the court-determined need of the minor. The amounts mentioned in the guidelines may also be increased to include the costs of private education, certain sports, or hobbies.
The amount that the maintenance obligor is deemed able to contribute for the benefit of the child constitutes their ability to pay. According to the guidelines, a parent’s ability to pay is determined as follows:
[actual income or earning capacity / basic subsistence minimum (1,456 guilders) + housing costs + non-culpable and unavoidable expenses].
The amount determined for the costs of care and upbringing of the minor may not exceed either the minor’s need or the maintenance obligor’s ability to pay.
It often occurs that a maintenance obligor is required—immediately or over time—to expand their existing work activities or to fully utilize their earning capacity. I recently reviewed a ruling in which the judge decided that, given the significant maintenance obligation parents have toward their children, a father who worked part-time could be required to work full-time. The court then set his income at the level he would earn under a full-time employment contract.
According to the guidelines, the subsistence minimum amounts to 1,456 guilders per person per month in Curaçao (and 1,400 florins in Aruba and 907 dollars in Bonaire). In principle, the court assumes reasonable “net” housing costs of 30 percent of income. The judge applies tailored solutions or deviates from the guidelines if actual housing costs are significantly higher and cannot be changed or avoided—or if they are lower than the fixed 30 percent calculation.
The subsistence minimum includes reasonable costs for electricity, water, telephone, internet, cable connection, air conditioning service, groceries, and car use. Actual costs for these items are therefore not taken into account separately. Mortgage or rent costs are not included in the subsistence minimum. Other expenses—such as non-culpable and unavoidable costs—must be stated and, if disputed, substantiated, for example study loans or debts incurred for the purchase of necessary goods such as a refrigerator, washing machine, or car.
If the combined available ability to pay of the parties exceeds the need of the minor(s), the need of the minor(s) must be divided proportionally based on the following formula:
[individual ability to pay / total ability to pay × need].
Here too, there may be situations that justify deviating from the outcome of this calculation.
In the following calculation example, I refer to the above-mentioned case of the father who worked part-time but was deemed by the judge to have a full-time earning capacity. The judge first determines the children’s need based on the guideline (500 guilders per child per month). This amount is then increased by costs for sports and after-school care, which in this example amount to a total of 1,640 guilders per month for two children. The total cost for the children is therefore set at (1,640 + 500 + 500 =) 2,640 guilders per month.
The parents must contribute to these costs in proportion to their ability to pay. Suppose the father earns 3,000 guilders net per month based on part-time employment. In the court’s view, the father can earn 6,000 guilders because he can be required to work full-time. When determining the father’s ability to pay, the subsistence minimum of 1,456 guilders must be taken into account, plus his housing costs, which we assume are 600 guilders per month.
This means that the father has (6,000 − 1,456 − 600 =) 3,944 guilders net per month remaining. Suppose the mother does not submit any financial information, making it impossible to determine her ability to pay. As a result, no comparison of the parents’ respective capacities can be made, and it cannot be determined what contribution the father must pay to the mother. The judge will therefore determine a reasonable amount that the father is deemed able to contribute toward the children’s costs.
Given the circumstances of the case, it is then possible that both parents will be required to each cover half of the children’s needs—meaning 1,320 guilders per month per parent, or 660 guilders per child per month.
Please feel free to contact me at info@true-lawyers.com if you are interested in receiving a copy of the Child Support Guidelines or if you have questions about calculating child support based on these guidelines.