Person and family law
If something changes in your private situation, you will often have to deal with personal and family law. You can think of a divorce or termination of a registered partnership. In addition to the necessary emotions that such changes entail for you and the other, you are also confronted with the (often drastic) consequences that personal and family law attaches to this.

What must be arranged
In many matters that, for example, in the event of a divorce, most people have an idea: alimony (child and / or partner alimony), the division of assets and agreements about debts in a general community of property or the settlement clause with a prenuptial agreement and the access arrangement with, or care arrangement for, the children (think of the parenting plan).

Arrange yourself or call in expert help
Fortunately, most matters can often be arranged in mutual consultation. When it comes to the details, it sometimes gets more difficult. What exactly is it about me and yours? What is a reasonable amount of alimony? Can he always see the children if he wants to or only on weekends? And shouldn’t her new boyfriend just help pay for her and the kids? And if we arrange it this way, can I get back to that

Lawyer often required, always desirable
In most cases family law requires the assistance of a lawyer. On the one hand, this is annoying, because a lawyer costs money. On the other hand, compulsory social assistance is often only better. In addition to things that you know should be arranged, there are many things that you may not know can (or should) be arranged. And some agreements you can make, but are simply not legally valid, or have much greater consequences than you thought. A (divorce) covenant then suddenly has a completely different content than expected. For example, child maintenance cannot be waived and an agreed amount of partner maintenance whereby you deviate from the legal standards usually means that you can only request a change in special circumstances at a later date.

Alimony
During marriage and registered partnership, spouses and registered partners are obliged to provide each other with the necessary provisions. Parents are obliged to provide their children with the necessary until they turn 21 years of age. They have a maintenance obligation. The maintenance obligations do not end due to the dissolution of the marriage or registered partnership or because the child no longer lives with a maintenance debtor. The law then refers to maintenance for the ex-spouse or ex-registered partner, the costs of care and upbringing for underage children and the costs of living and study for young adults. In practice, we speak of partner or child maintenance.

The fact that someone is liable for maintenance does not automatically mean that he has to pay maintenance. The creditor must be in need of a contribution, the creditor must be in need and the debtor must be able to pay the maintenance. The maintenance obligation for a child rests on both parents and should be divided between them according to their ability to pay.

The judge determines the alimony on the basis of “the legal standards”.

The legal standards
Nowhere in the law is it stated what the legal standards of maintenance are. In the past, this has, of course, created the necessary uncertainty and inequality. In recent decades, however, the judiciary has increasingly expressed itself in detail about what it believes these legal standards are. At present, an annual report of the “Expert Group” is published on the website of the judiciary. Although this report and its annexes are not “law”, this report is generally used as a guide by lawyers and judges in their maintenance calculations.

Alimony calculations
On the internet you can find the necessary alimony calculation tools that are getting more extensive and better every year. In view of the size of the Expert Group’s report and the constant changes in law and case law, we strongly advise against making mutual agreements about maintenance based on the outcome of such calculation tools. Making a good alimony calculation requires too much knowledge and experience. The consequences of such agreements are often much greater than expected. If you deviate from the legal standards for partner alimony, you can (almost) never have them changed later!

Reign, mentorship and receivership More and more often people are no longer able to take good care of themselves. Sometimes they cannot handle money well, sometimes not with their health or social environment and sometimes they are almost completely unable to take care of themselves. The law offers various options so that some decisions can no longer be taken by yourself. Someone else makes the decisions. These measures are often experienced as very drastic, but sometimes they just have to. No legal assistance is required to apply for these measures. You can download the forms with which you can request the court for the following measures from Rechtspraak.nl.

Reign
If someone is unable to properly represent his financial interests due to mental or physical condition, waste or because there are problematic debts, the subdistrict court may place someone “under administration”. This form of government is also called protection government. This is to distinguish this administrator from the administrator who is appointed when the statutory debt rescheduling scheme (wsnp) is declared applicable.

During a protection regime, not so much man, but his goods (including future ones) are placed under administration. Man can no longer dispose of his assets. He becomes “unauthorized”. He or she may do whatever he or she wants, but the consequences no longer affect the assets placed under administration. Often the person under administration receives a living allowance for his shopping every week and the administrator is responsible for paying the fixed costs.

Despite the fact that this administration can also be pronounced on part of the assets (for example, on a very large inheritance), in practice all assets are placed under administration. The ruling in which the administration is pronounced will be published onrechtspraak.nl. As a result, others can no longer rely on the fact that they were not aware that there was no power of disposition. The purchase entered into by the person placed under administration is binding for both parties, but the seller cannot recover from the goods placed under administration. The groceries in the supermarket can therefore be done as usual.

Mentorship
Unlike government, mentorship concerns everything that relates to the care, nursing, treatment and supervision of a person. He or she then becomes limited legally incapacitated and retains power of disposal (over the assets). Mentorship should in particular be pronounced jointly with the administration, so that there is no need to opt for receivership.

Guardianship
Guardianship is the most drastic measure. It can be pronounced not only if someone is unable to represent his or her own interests, but also if he or she endangers the safety or the safety of others. The person placed under guardianship is legally incapable. He or she can no longer perform legal acts, unless the law provides that this is possible. Messages can only be done if the curator agrees. Housing, care and medical treatment are determined by the trustee.

Divorce
By divorce most people mean the entire procedure up to divorce with everything connected with it. Strictly speaking, divorce only refers to the dissolution of the marriage. This dissolution must be pronounced by the court. The division or settlement of the assets, the child and partner maintenance and the consequences for the children can either be determined in mutual consultation or be (partly) submitted to the court for assessment. This can be done in divorce proceedings (ancillary application) or in independent proceedings.

Provisional provisions
Before the court has ruled on the divorce petition and the ancillary petitions, the necessary time has usually passed. If the parties really cannot reach an agreement together and they cannot wait for the decision in the divorce proceedings, then it is possible to arrange the necessary preliminary arrangements in emergency proceedings prior to (and even partly during) divorce proceedings. It should then be about:

• the exclusive use of the matrimonial home by one of the parties (the other must then leave the home);
• the obligation to hand over the goods that the other person needs for his daily use, as well as the relevant goods of the children;
• entrustment and possible delivery of minors, as well as a provisional amount of child support;
• the division of care and upbringing tasks (or determination of the contact and the obligation to inform and consult between the minor and the other parent);
• the provisional amount of partner maintenance.

The divorce procedure
If the parties do agree (parts of it) together, they can choose to record these agreements in a covenant (the division or settlement and the partner alimony) and / or in a parental plan (child maintenance, care or access arrangement and information & consultation arrangement). The court will then include the agreements in the decision, making these agreements immediately enforceable. Because divorce proceedings contain many different aspects on which decisions must be made, it is preferable to have at least what the parties agree on recorded in writing by their lawyer. A covenant and a parenting plan make things more transparent for the parties, thus avoiding unnecessary litigation. Incidentally, it is not uncommon that agreement is reached relatively quickly about the distribution and the care arrangement, but that the parties remain divided in particular on child and partner maintenance. In such cases, both the agreements and the points in dispute are submitted to the court.

Recognition
If a child is not born during a marriage, the father must recognize the child in order to establish a family relationship with the child. This recognition formally gives the father the necessary rights and obligations towards the child, such as the right to access and the duty to maintain. Incidentally, if a child is not recognized, this does not mean that the father would therefore not have the right to access or would not have a maintenance obligation.

Parental authority
Parental authority over a child means no more and no less than the right to make decisions about a child. When a child is born in a marriage, both parents have custody of that child. Recognition by the father of a child who was not born during marriage does not result in that father also acquiring custody of that child. The father must submit a form to the court together with the mother. If the mother does not wish to cooperate in this, the father must (through a lawyer) file a petition with the court to be charged with parental authority. That petition will then initiate legal proceedings. The mother can defend herself against this request.

Children and divorce / parental plan
If you both have parental authority (joint authority), a divorce does not in principle change this. Each retains parental authority after divorce. Parental authority requires being able to make agreements about the children. The divorce does not change that either. For this reason, a parenting plan should be filed with the petition for divorce. In this parenting plan, the parents must record the agreements they have made about:

• the way in which the care and upbringing tasks are divided (when are the children with which parent and which parent does what)
• the way in which the parents provide and consult each other about important matters about the children;
• the contribution towards the costs of care and upbringing (child maintenance).

The parenting plan often also specifies where the children have their primary place of residence (and who therefore receives the child benefit and the child-related budget).

Concept of parenting plan
If the parents cannot agree on the children, it is sufficient to submit a “proposal” for a parenting plan. The other parent must of course have first been able to take note of that proposal and be given the opportunity to respond to it.

Parenting plan model
There are many models for a parenting plan on the internet. Experience shows that such models are a good tool if the parents are largely aligned. However, the other side is that if parents are less ‘happy’ to separate, the children are often involved by one or both parents. Agreements about the children (or not making them) are then used to touch the other parent, to assert oneself as a parent or “the good party in the divorce”, to cling to the other parent, et cetera. In all those cases, the children are of course the victims. If only because of the stress that the children in such cases receive from both parents. It is often sensible to draw up a short and concise parenting plan in such cases. There are different models for children of different ages. Wanting to agree on piercings and tattoos in the case of a two-year-old child seems less productive.

Division of care and upbringing tasks / association and contact
If the father has authority over his child, the law speaks about division of the care and upbringing tasks of the child when it comes to the question of when the child is with which parent and which parent does what . If the father has no authority over his child, then the law speaks in that case about contact and contact between the father and his child. This distinction may seem strange at first, but it is because the father without authority has no formal say over his child.

Dividing and settling
When people have lived together, the question almost always arises as to which goods belong to whom, who has to pay the debts and whether one still has to pay something to the other. To answer these questions it is important how people have lived together and what agreements they have made (or not) about this.

Cohabitation without written agreements
The main rules are that the goods belong to the person who has acquired ownership thereof and that each must pay half of the joint costs. That sounds nice, but it often turns out less attractive in practice. If the man buys a music system and the woman pays for the joint shopping, the man therefore has a music system and a debt to the woman for half of the joint shopping. If the parties separate years later, the music installation will still be there (demonstrably). Whether the woman, on the other hand, can still prove that she did those joint (!) Shopping at the time is very much the question. It becomes even more annoying when one party (demonstrably of course) pays the housing costs and the other the groceries. The housing costs can be proven fairly easily, those of the joint shopping cannot.

Then it is of course still possible that the parties have made agreements in which they have deviated from these main rules. Whether they have done so and what they would have agreed upon, must be determined on the basis of the so-called ‘Haviltex criterion’: “and on what they could reasonably expect from each other in this respect, whereby all circumstances are important, including the actual actions of the parties ”.

The cohabitation contract
The main rule is that what the parties have put in writing is the way in which they should settle their society. However, contrary to what parties often think, it is not always completely clear what parties have agreed and why. The explanation given by one party to an article is often completely different from the explanation given by the other. What parties have agreed must therefore be “explained”.

For this explanation, the additional and limiting effect of reasonableness and fairness should first be considered (Article 6: 248 BW). An agreement also has consequences that are not put in writing in it, while some rules that are in writing sometimes do not apply. Again, the Haviltex criterion plays a major role.

Marriage
General community of property
Unless agreements have been made about the matrimonial property regime at the notary, there is general community of property. The main rule, then, is that spouses each have full joint ownership of all assets and both are fully liable for joint debts. In practice this means that the money, the goods and the debts are divided in half. From a legal point of view, however, debts cannot be shared and agreements must be made about this with the creditors. For several years now, filing the petition for divorce (as long as it is not withdrawn) is the moment when property and debts are no longer obtained jointly. Debts incurred and goods acquired after this turning point no longer belong to the assets of the other. For a possible appeal to this against a creditor of the other spouse, the petition must then be registered in the matrimonial property register.

Marriage conditions
If the parties have made agreements about the property after marriage, we speak of marriage conditions. Because marriage terms are an agreement, spouses can agree on almost anything. And that’s what parties do. Roughly, agreements are made about assets (yes, no, or only partially jointly) about the costs of the household (who pays which part, usually based on the ratio of everyone’s income and how it is more or less settled) and about the income of parties that has not been spent at the end of the year (annual settlement, at the end of the marriage, or not at all).

Despite the fact that a marriage contract is a notarial deed, it is not always clear what exactly has been agreed here. Marriage conditions must also be explained, in which the Haviltex criterion again plays a major role. In addition, failure to comply with the obligation to settle in the interim has major consequences and that under certain circumstances marital conditions can lead to complete imbalances. There is therefore the necessary jurisprudence on matrimonial conditions.

Pension
From a legal point of view, a pension is not an asset that qualifies for distribution. The Divorce Equalization Act regulates the manner in which division takes place. If no other agreements have been made (usually in prenuptial agreements), then each will receive half of the other’s pension rights that have been accrued during marriage, as well as the rights to survivor’s pension accrued for him or her. For a direct claim against the pension insurer on half of the pension of the other person (accrued during marriage), the pension insurer must be contacted about this within two years after divorce. For the conversion of this entitlement to the other person’s pension into their own pension entitlement (which does not expire upon the death of the other person), the consent of the other is required. this does not always go well.