VvCP member and Collaborative Divorce Attorney Fabrizia de Wit-Facchetti is regularly approached by expats with the question whether she can help them during their divorce. But you might be wondering, what is so different about a Collaborative Divorce between partners living in and from the Netherlands, and expats? Fabrizia tells us more about it.
The biggest difference is that you do not (only) have to deal with Dutch law, but also with International law and the law of the country where the expats come from. I myself come from Italy, so I am often approached by Italian couples living in the Netherlands. In the past however, I have also been able to help American, Canadian, British, French, Spanish and German couples and expats coming from other countries. For couples from America, the law also differs per state which must also be considered. In order to keep it close to my roots, I’ll give an Italian example in this case.
A couple from Italy comes to live in the Netherlands as expats. They have children together in the Netherlands. The couple and the children have Italian nationality. The couple decides to get divorced and as a result, depending on the agreements, the division or settlement must be arranged, and alimony must be paid. Under Dutch law, spousal maintenance must in principle be paid for a maximum of 5 years, while Italian law stipulates that an ex-spouse is entitled to lifelong maintenance. On the other hand, there is no right to equalization of pensions in Italy. Pension is seen as income and taken into consideration as financial capacity in determining alimony. If Italian law is applicable to marital property law, the Dutch law on equalization of pensions does not apply in principle. This means that the ex-partner of a partner working in the Netherlands receives alimony for a limited number of years and no pension. An unreasonable result resulting from applying two different legal systems to different aspects of the matters which are to be settled in the divorce.
Because the expats live in the Netherlands, Dutch law applies in principle to divorce and spousal maintenance, but should one of the two decide to move back to Italy, then the alimony rules could change. If no agreement was made for changes during the divorce, then both parties can find themselves going to an Italian court all over again. And of course, you don’t want that.
Finally, expats who work for an international organization do not pay taxes in the Netherlands, which means that when you make a calculation for the alimony you have to take their net income. The one receiving the alimony will have to pay taxes, which means that both parties will be unhappy with the result. To ensure that smart constructions are used which are permitted by law, it is advisable to handle the divorce by means of collaborative lawyers with a collaborative financial expert, since the judge cannot consider these constructions or make any decisions about it. We are looking for solutions that are applied specifically to the couple and results in a win-win situation for both parties.
And then we haven’t even mentioned gifts, inheritances, and pensions. They can lead to unwelcome surprises as well.
These are just a few examples, but of course these examples differ per situation and per nationality. I now know a lot about the Italian and other foreign legal systems, but I have also built up a large network of collaborative divorce professionals that I can call on and work together with. This applies not only to Italy, but to many different countries worldwide. In addition, during a Collaborative Divorce, both partners have their own Collaborative Divorce Attorney, so that they always work together, and the interests of both parties are protected in the best possible way.”
Are you an expat yourself and are you about to get a divorce? You can find more information on our website https://www.vvcp.nl/en/ Or do you have a question about Collaborative Divorce for expats? Please send us your question via the contact form https://www.vvcp.nl/en/contact/
We would like to thank Fabrizia de Wit-Facchetti for her input in this post! You can contact her via https://www.bolderadvocaten.nl/