Consultative divorce for expats

published by: Fabrizia de Wit-Facchetti posted on 22 August 2022 reading time

VvCP member and Consultative Divorce lawyer Fabrizia de Wit-Facchetti is regularly approached by expatriates asking if she can help them during their divorce. But what is so different about conciliation divorce between partners who live in and come from the Netherlands and expats? Fabrizia tells us more about it.(Clicca qui per l'italiano)

"The biggest difference is that you are not (only) dealing with Dutch law, but with international law and the law of the country where the expatriate comes from. I myself come from Italy, so I am often approached by Italian couples living in the Netherlands. But in the past I have also been able to help American, Canadian, British, French, Spanish and German couples. For couples from America it also applies that the law is different in each state and therefore needs to be taken into account.

To keep it close to my roots, I will outline an Italian example in this case.

A couple from Italy come to live in the Netherlands as expats. They have children together in the Netherlands. The couple and the children have Italian nationality. The couple decide to divorce and as a result, depending on the arrangements for the division or settlement, alimony must be paid. Under Dutch law, spousal support must in principle be paid for a maximum of five years, while Italian law stipulates that an ex-spouse is entitled to lifelong maintenance. On the other hand, in Italy there is no right to pension equalization. Pension is considered income and is included in alimony. If Italian law applies to the marital property law, the pension equalization law does not, in principle, apply. This means that the ex-partner of a partner working in the Netherlands receives a limited number of years of alimony and no pension. An unreasonable result that comes from applying two different legal systems to different parts of the issues to be settled in the divorce.

Since the expatriates are living in the Netherlands, in principle Dutch law applies to the divorce and spousal support, but if one of the two decides to move back to Italy, the alimony rules change. If no changes were agreed upon during the divorce, both parties could again have to appear before an Italian court. And that, of course, is not what you want.

Last but not least, expatriates working for an international organization do not pay taxes in the Netherlands, which means that net amounts are always used. To ensure that smart constructions are used that are allowed by law, it is advisable to handle the divorce through collaborative lawyers with a collaborative financial man, since the judge cannot think about these constructions or make a decision about them. Solutions are sought that are specifically applied to the couple in question and provide a win-win situation.

Not to mention gifts, inheritance and retirement. These, too, can produce surprises.

These are just a few examples, but of course these examples vary by situation and nationality. By now I know a lot about the Italian and other foreign legal systems, but I have also built a large network of collaborative divorce professionals that I can call on and work with. This applies not only to Italy, but to many different countries worldwide. On top of that, during a Collaborative Divorce, both partners have their own Collaborative Divorce lawyer, so there is always collaboration and the best interests of both parties are protected."