Home » Divorce & Family Law » Maintenance Allowance, Separation and Divorce

Maintenance Allowance, Separation and Divorce

Recently updated on 30 Apr 2024

11 May 2022 - Divorce & Family Law - Min Read 10 min
Maintenance Allowance, Separation and Divorce

The maintenance allowance is the financial compensation that is sent to a partner and/or child following a relationship crisis where the break-up is decided in front of a judge.

There are three types of allowance that can be awarded to children and/or spouse, namely child support, spousal support upon separation, and divorce maintenance to the now ex-spouse.

The History of Maintenance Allowances

The payment of money to the spouse/ex-spouse or to the child/children is an obligation that is not contractual in nature. It is the Italian Constitution that provides, within the family, economic protection for the weaker parties, in the event that the agreement fails, and separation occurs.

The Italian legal system stipulates that, before arriving at a dissolution of marriage, a period of personal separation is required.

When it comes to deciding the specific needs of each of the two former partners, a different perspective is used depending on whether the couple are in the pre-divorce separation phase or have progressed to the divorce phase.

A number of variables also come into play with regard to child support (principally age and the different needs according to age as well as the relative incomes of the parents, standard of living in the period prior to the separation, etc.).

How is the spousal support calculated?

 In calculating spousal maintenance, the judge examines:

  • Employment income.
  • Ownership of real estate.
  • Availability of the marital home.
  • Any other sources of wealth (including investments).

In cases where the spouse requesting maintenance is not employed, their capacity to work must be assessed:

  • Whether they are capable of performing paid work;
  • Whether their age and health conditions are compatible with working;
  • Whether they have work experience sufficient to find employment easily;
  • How long they have been out of work;
  • Whether, despite not working, they have contributed through their behavior and personal sacrifices to the building of the family’s wealth, foregoing work or career to take care of children/home and thus enabling the other spouse to pursue their own career.

The calculation of the separation allowance may also be influenced by the standard of living that the spouses maintained during the marriage, a factor that is irrelevant for calculating the divorce maintenance.

Maintenance Allowance for Children

With regard to children, Article 30 of the Constitution of the Italian Republic states that “it is the duty and right of parents to maintain, educate and bring up their children, even if they are born out of wedlock” (maintenance and rights of children of unmarried parents).

The Civil Code states that “unless otherwise agreed freely by the parties, each parent shall provide for the maintenance of the children in proportion to his or her income; the judge shall, where necessary, establish the payment of a periodic allowance in order to achieve proportionality” (Art. 337-ter).

This allowance, again according to the Civil Code, is to be determined according to the needs of the child, the standard of living enjoyed during the period preceding the separation, the time spent with each of them, the economic resources of both, and the “economic value of the domestic and care duties undertaken by each parent”.

For children who have reached the age of adulthood and are therefore presumed to be able to create a certain degree of autonomy for themselves or have the means to do so, no law specifies that a parent must terminate payment of the allowance on reaching the age of 18.

However, this issue is the subject of debate and the courts have often dealt with cases of parents asking for recognition of the economic independence of their adult children, or at least asking them to work towards it, given every opportunity. The Court of Cassation had already intervened to settle the matter in judgment no. 18076/2014, calling for several factors to be taken into account, once the children had reached the age of majority, namely “the circumstances justifying the continuation of the aforementioned obligation or the assignment of the property”.

Also, according to the Court of Cassation “such an obligation may not be prolonged beyond reasonable limits of time and extent.”

It is up to the children’s self-awareness to understand the best way to achieve their independence, without placing an excessive burden on their parents.

In its most recent order no. 11186 of 11 June 2020, the Court of Cassation ruled in favor of a father whose son, while studying, had a part-time job with a zero-hour contract.

In these circumstances, the maintenance allowance was assessed as superfluous.

Separation Allowance vs Divorce Allowance

The separation allowance and divorce allowance/maintenance/Alimony are only provided upon request, and are measures designed to protect the partner considered more vulnerable. The amount of the allowance and the criteria for its allocation vary depending on the stage of the breakdown whether separation or divorce.

The Maintenance Allowance After Separation

The first type of support for a separated partner who is considered to be in need financial assistance, is established at the stage of separation.

Separation does not necessarily entail the termination of the effects of marriage, but rather represents a transitional situation, a sort of suspension with a deadline, and may lead to divorce or reconciliation.

Within this context, in decisions relating to separation allowances there is a tendency to continue the financial benefits enjoyed during the course of the marriage as the marriage is still technically in place.

To the spouse, who is not charged with the separation, the standard of living enjoyed during cohabitation is guaranteed, as the duty of material support does not cease, with only the personal obligations of fidelity, cohabitation, and cooperation ceasing.

Several factors are considered in determining the amount of money paid in the allowance. These include the length of the marriage, the different incomes of the two spouses, the availability or otherwise of a family home, and any extraordinary expenses caused by the separation. The details of the separation, if agreed upon mutually, will only involve the lawyers, who will also agree between the parties on the monthly fee to be paid.

In the event of a judicial separation (where a mutual agreement cannot be made), all decisions will be referred to a judge.

The guideline for determining the amount to pay as allowance is still determined by the pre-separation standard of living.

The payment of the separation allowance ceases the month before the commencement of the divorce maintenance payments.

Post-divorce Maintenance Allowance

A divorce allowance (Alimony) is the material demonstration of the principle of post-marital solidarity.

Once the final divorce decree has been issued, one of the patrimonial effects will be the payment of a periodic divorce allowance, aimed at maintaining the spouse who is less sufficient in the case that there is not financial parity between the former partners.

The allowance is paid from one of the ex-partners to the other in the case that it is decided that the less economically stable partner would not be able to support themself without it.

One can also choose to establish an amount to be paid in a lump sum. In this case the parties must have reached a specific agreement.

The payment of the lump sum excludes cases of emergency, so that the beneficiary may not claim any other economic benefit, not even in the event of a worsening of economic conditions (see Civil Cassation, section of labour, judgment 08/03/2012 no. 3635).

If one of the partners pays a lump-sum payment, they will not be able to use it as a charge deductible from income, for the purposes of the application of IRPEF (art.10 paragraph 1, letter c). d.P.R. n.917/1986) as would be possible with a monthly divorce allowance (civil cassation sentence. No. 23659 of 6/11/2006; Civil cassation sent. No. 16462 of 22/11/2002).

In addition, a one-off lump-sum payment does not qualify as taxable income for IRPEF purposes for the recipient.

Compared to the separation allowance, the divorce allowance must comply with more restrictions before being granted, especially after the Supreme Court’s judgment no. 11504/2017, which is considered a milestone for subsequent discussions because it implemented a reversal (change of opinion) with respect to the previous 30 years of case law.

Marriage, as an ‘act of freedom and self-responsibility’, can also be dissolved, but at that point the ex-spouses go back to being ‘single persons’ and no longer have a duty of mutual support. As the marriage is dissolved but not annulled, a maintenance allowance will still be due for ‘economic solidarity’ with the former spouse.

Even if the ex-spouse considered to be the weaker party earns a salary, if this provides insufficient means for them to support himself/herself, the divorce allowance will be used to supplement their income. Those who are not employed will be entitled to a contribution not exceeding what is necessary to live off.

Those who are unemployed should be entitled to a contribution that does not exceed what is necessary to survive.

The amount of the divorce allowance, in this case, would be a much smaller amount than the maintenance allowance.

The guideline translates into the axiom that, if one has the means to provide for oneself, receiving an allowance from an ex would result in undue enrichment.

However, it also has a compensatory function, because it is also based on the spouse’s contribution to building up the family’s assets during the marriage (even if it was in domestic work/ childcare). For the Supreme Court, indeed, familial sacrifice justifies the divorce allowance.

The Supreme Court has clearly indicated the factors that determine self-sufficiency:

  • Possession of any type of income;
  • Possession of movable and immovable assets;
  • The ability or actual possibility of working (the Supreme Court sets 45-50 as the age limit beyond, which is much more difficult than finding a job);
  • The availability of a house.

Those who are unemployed will have to prove to the judge that this is not due to their own will, but rather due to reasons related to age, health, vocational training, or crisis in the employment market (due to the Covid health emergency, for example, it is clearly more difficult to find work, especially in certain sectors).

In order to prove a legitimate attempt to find work being registered with a job center is not sufficient. You will have to prove that you have sent CVs, participated in calls for tenders and competitions, …

Analyzing a series of judgments by the Supreme Court of Cassation, it can be seen that the principle of standard of living has been abandoned, and that the allowance is now more likely to be assessed on the basis of the working capacity of the weaker party: if he or she is young and able, the amount of the allowance will be less substantial and will have to be a minimum of support.

The ex-spouse is obliged, after the divorce, to look for employment, and to actively use his or her abilities. The court condemns an “irresponsible wait-and-see attitude, of those who simply wait for job opportunities, passing the financial burden of the end of married life on to the better-off spouse”. (C.C. Order No. 3661 of 13 February 2020).

If, however, the less wealthy ex-spouse is significantly older, “the applicant will be granted an adequate amount to guarantee them a dignified and autonomous life, which recognizes the sacrifices they have made and what they have done during the marriage” (C.C. judgment no. 6519 of 9 March 2020).

Another important parameter for assessing the right to receive divorce maintenance is the nature of the relationship established and the decisions made as a couple during the period of cohabitation that preceded the marriage.

Indeed, during cohabitation, a type of turning point can occur in the relationship that will then influence the marital life

Revisions of Maintenance/ Divorce allowances

The revision of a maintenance or divorce allowance (Alimony) does not occur automatically but must be expressly requested.

Several judgments of the Supreme Court of Cassation have led those who were forced to pay a large allowance to their ex-spouse, determined by criteria considered anachronistic (primarily maintenance of the lifestyle enjoyed during the marriage) to request a review of the maintenance allowance, obtaining, in some cases, its revocation.

Another situation that may arise after the separation or divorce decree is that of receiving an inheritance that significantly changes the financial independence of the formerly weaker ex-spouse and puts an end to their need for financial support.

In the groundbreaking judgment 28778/2020 of 16 October 2020, the Court of Cassation ruled that the allowance must be remodelled or revoked if the beneficiary spouse is in a stable romantic relationship. This is applicable even if officially there is no cohabitation with the new partner, as they could be living together and also maintaining two separate residences. The reasoning for this is that a stable relationship with another partner would devalue the sense of maintenance by the former spouse.

Those who find themselves having to deal with job loss or a decrease in income can ask the courts to adjust the amounts due to the new situation, or to revoke them, even temporarily

Renegotiating maintenance payments at the time of Covid is something that has unfortunately become increasingly necessary. Once the petitioner has demonstrated the inadequacy of their income following a loss of work due to Covid, judges have had to adjust the amounts due to the petitioner on a case-by-case basis according to the ex-partner’s new situation.

If you are going through a separation, or you are not convinced that the amount of allowance you pay to your children and/or ex-partners is correct, or if you are otherwise interested in learning more, do not hesitate to contact our lawyers in the Family Law and Divorce Department.

For further study:

Request a consultation now!

Complete the form to request a legal consultation. Our experts will evaluate your case and suggest the best solution.

Calogero Boccadutri

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

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.