Although a divorce at the hairdresser is the cheapest, I am regularly approached with requests for legal assistance in divorce cases and questions about alimony.
A divorce is finalized through a court order and is pronounced at the request of one of the spouses or at their joint request. Once the parties can no longer appeal the court’s decision, the order becomes final and binding. A final order must be registered within six months in the Kranshi registers (the civil registry). If timely registration with Kranshi is omitted, the marriage is still considered legally valid according to the law. The divorce order must be confirmed in the marriage certificate for it to be effective.
The dissolution of a marriage through divorce not only brings emotions but also legal consequences. Book 1 of the Civil Code contains various provisions regarding the legal consequences of divorce. One important and frequently discussed legal consequence of divorce is alimony. Alimony is a contribution toward the living expenses of a specific person or persons. In our law, there are two types: child support and spousal support. In this article, I will limit myself to child support; spousal support will be addressed in a subsequent article. The obligation that applied to both parents during the marriage—the duty to raise and care for the children and, after they turn eighteen, to provide for their living expenses for education—continues to exist after the dissolution of the marriage. In most cases, the parent who does not provide daily care for the children after divorce will have a visitation arrangement and must pay child support to the caregiving parent.
The biological father of a child who has only a mother, as well as a man who, as the mother’s partner, has consented to an act that may have resulted in conception, is, as if he were a parent, obliged to provide for the care, upbringing, and/or living expenses and education of their minor and adult children who have not yet reached the age of twenty-one.
The legal standards for determining child support are the needs of the children and the financial capacity of the parents. Parents must contribute to the children’s needs proportionally to their financial capacity.
If the child’s needs cannot be established by the court, the court may set the child’s needs on a forfaitary basis. For the forfaitary calculation, the court assumes 15 percent of the joint net disposable income (NBI). In calculating financial capacity, the court uses the NBI as the starting point. This income consists of gross income minus the required or withheld premiums and taxes. The following expenses are deducted: a reasonable net housing cost of 30 percent of the NBI, the subsistence minimum of 1,036.00 guilders (as derived from the report “Calculation of the poverty line for Curaçao” of October 17, 2008, and the “Povertyline Curaçao by type of Household (ANG per month)”, indexed up to 2017), and any other unavoidable and non-attributable expenses (e.g., student loans from DUO, repayment of a loan taken out for purchasing a car, etc.). The net housing cost, subsistence minimum, and other relevant expenses together are called the non-capacity income (the part of income that does not generate financial capacity). The difference between income and non-capacity income is called financial capacity.
If there is positive financial capacity, the person obligated to pay support is, in principle, considered able to pay child support. Only 70 percent of the available financial capacity is designated as actual financial capacity. This capacity represents the amount the obligated parent is deemed able to provide for the benefit of the entitled parent. The available financial capacity is calculated using the formula: 70% [NBI – (0.3 NBI + NMin 1,036.00 + any unavoidable, non-attributable expenses)].
If the combined financial capacity of the parties is significantly lower than the children’s needs, the court may decide that no capacity comparison is required and that the parties must contribute according to their financial capacity to the children’s needs. The children’s needs can also be divided proportionally between the parties based on the formula: [capacity / combined capacity x need]. This applies, for example, if the combined available financial capacity is higher than the minor’s monthly needs.
When calculating the financial capacity of the support-obligated parent, the court may consider the earning capacity of one of the parties. The parties are expected to fully utilize their earning capacity. Therefore, it is possible for the court to determine that a party is considered able to earn a certain net income. The court can take this hypothetical income into account when determining financial capacity.
If one of the parties cares for the minor an average of two days per week, they may request a care deduction. The care deduction may be, for example, 25 percent of the minor’s needs. This amount can be subtracted from the calculated share (of the party requesting the deduction) in the minor’s needs.
The child’s needs are usually substantiated based on a cost overview provided by the requesting party. Generally, the court will discuss the listed costs point by point. Therefore, it is very important that the child’s needs are well-supported. Financial capacity and unavoidable, non-attributable expenses also deserve proper attention. It is crucial to use the correct arguments to support a child support request. We are happy to assist you with this.