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The Divorce Alimony: Guidelines and Rulings

22 Sep 2023 - Divorce & Family Law - Min Read 4 min
The Divorce Alimony: Guidelines and Rulings

Divorce alimony is a periodic or lump-sum economic contribution, granted upon divorce, in favor of the so-called “dependent” spouse.

It has undergone a substantial transformation since its inception in 1970 to the present day.

Whereas in the past, the criterion guiding judges’ decisions was the standard of living maintained during the marriage, whereby a high standard of living necessarily translated into a generous divorce alimony, the current parameter evaluated, and which now constitutes a fundamental criterion in discussions of divorce alimony, is the financial self-sufficiency of the requesting spouse.

If the requesting party is not financially self-sufficient, it is assessed whether this situation does not result from a personal choice or specific circumstances, which may also relate to choices made to support the other spouse’s career during the marital life. Once this is established, divorce alimony may or may not be considered.

Assistance and Compensatory Divorce Alimony

Divorce alimony must be justified by an assistance and “equitable-compensatory” intent.

A person who has sacrificed their career prospects for the family and contributed to the success of the other spouse deserves financial recognition for their efforts or the sacrifices they made during the marital life.

Divorce Alimony: The First Ruling of the New Era

A new perspective on considerations regarding divorce alimony emerged with ruling no. 11504 of May 10, 2017, by the Court of Cassation, effectively abandoning the idea that a well-off spouse should continue to contribute to maintaining the high standard of living of the ex-spouse.

 The economically stronger spouse is not obligated to ensure the same standard of living that existed during the now-concluded marriage.

A little over a year later, the Court of Cassation reinforced this concept, this time in a joint ruling, with ruling no. 18287/2018.

The ex-spouse can be granted divorce alimony if they require assistance or can demonstrate a right to economic support based on their contribution to the family’s life and the formation of common assets, taking into account the career prospects sacrificed.

The divorce ruling extinguishes all marital relationships, both personal and economic. A different scenario applies in the case of legal separation, which does not terminate all marital obligations (Article 143 of the Civil Code).

Divorce Alimony: Other Rulings

Jurisprudence teaches us that behind the same request, there can be various cases, and, of course, while following common criteria, judges must base their final decision on the specific case.

For example, in Ruling no. 25646 filed on September 22, 2021, the Court of Cassation denied divorce alimony to a woman who had requested it ten years after the separation.

During the separation, she had not made any requests for maintenance alimony and had not shown any need for financial assistance for a significant period, suggesting independence and financial self-sufficiency. Additionally, she owned a house purchased with the proceeds from the sale of the former marital home.

Regarding the right to divorce alimony due to career sacrifices during the marriage, the Supreme Court emphasizes that the party seeking alimony has the burden of specifically indicating and proving them in the case, as per Ruling no. 17144/2023 published on June 15, 2023.

In this specific case, it was deemed that the ex-wife was not entitled to divorce alimony as she did not provide evidence of lost job opportunities during her marriage.

The Court of Appeal in Rome was compelled by the Cassation to review the case of a retired Roman civil servant who had appealed against the obligation to pay the ex-wife one hundred euros per month, as she had started receiving a pension exceeding a thousand euros in the meantime.

When Does the Right to Divorce Alimony Cease?

Since divorce alimony serves an “assistance and compensatory” function, it can be awarded if one does not have the means to lead a dignified life and is unable to secure them for objective reasons. It is not due if the spouse refuses to work or has sufficient income to support themselves.

Refusing a serious and stable job offer without valid justification would also lead to the loss of divorce alimony.

Divorce alimony can also cease when the recipient remarries.

What’s the Difference Between Maintenance Alimony and Divorce Alimony?

When two spouses separate, whether they have children or not, different types of contributions that one can make to the other come into play, depending on their financial circumstances, specific requests, and the decisions of the courts.

Maintenance alimony is not affected by the rulings of the Court of Cassation regarding divorce alimony.

This amount is paid by one spouse to the other during the period following separation and preceding divorce, while a connection between the spouses still exists.

Separation ends the obligations of cohabitation and fidelity but not mutual assistance.

After the divorce ruling, any type of alimony can be reviewed, modified, or annulled based on changes in factual circumstances.

Revisions to the provisions concerning the amount and manner of support can only be requested if justified reasons have arisen after the ruling. It is necessary to provide documentation demonstrating changes in the ex-spouses’ financial circumstances.

In the case of a revision, the current situation of the ex-spouses should be assessed, not the one that existed at the time of alimony allocation.

To obtain divorce alimony, the differentiator must be the demonstration of an inability to provide for oneself economically, for reasons beyond one’s control.

To better understand the differences between the various forms of support, we refer you to our guide on maintenance, separation, and divorce alimony.

If you have any questions on the subject or are personally involved in a divorce, our expert family law attorneys are at your disposal for clarification and advice. To get in touch with an attorney from our firm, please request legal consultation.

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Calogero Boccadutri

Calogero Boccadutri is the Managing Partner of Boccadutri International Law Firm. He has trial experience in Forex, Personal Injury and Administrative litigation.

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