Renegotiate maintenance checks at the time of Covid

You can renegotiate the amounts of child and spousal allowances if your income has been affected by the COVID-19 pandemic.

Italian law protects children and those in economic difficulty following a separation, by assigning a monthly support amount to be paid by the court-determined spouse.

When calculating the amount of support to be, the economic situations of the relative partner is taken into account which can be subject to alterations if and where necessary. As the global pandemic continues to unfold, many work activities are forced to reduce the volume of their own business or, in the worst-case scenario, to close.

What the law says regarding family support

The Civil Code, art. 156 and law n. 898/1970, mandates that parents are obliged to support their children “in proportion to their respective capacities, which include the ability to work, professionally or at home”.

If, on the other hand, we talk about the support of a spouse in economic difficulty, various factors come into play to establish how much is required to be paid, taking into account income and the capacity to continue working.

On this last point, the Supreme Court of Cassation ruling (sentence no. 11504 of 10 May 2017) has had evident consequences in subsequent sentencing.

The same Civil Code provides that, once demonstrable reasons have arisen, the spouse obliged to pay may submit a party petition, and request the judge to order the modification of what was previously established regarding support, and even possible revocation.

No reduction or decrease in the monthly allowance for children and former spouses can be arbitrary or verbally agreed upon with the other party, but must be requested to the appropriate judge, who must take several factors into account when reconsidering the situation of the responsible spouse.

What the post Covid-19 sentences say about support payments

Each court called into question has had its own say on the matter, by way of example, we will cite three sentences, but it is important to note that each case must be evaluated on a case-by-case basis.

The Court of Terni, with a sentence issued on July 16, 2020, ordered the reduction of the support allowance that a father was to pay for his children each month, taking into account his particular situation, which suffered the consequences of the Covid-19 pandemic.

In this case the father, a freelancer, had seen his income reduced, both due to the pandemic and due to documented health reasons. Nonetheless, the ex-wife, in full divorce proceedings, had requested an increase in the maintenance allowance, justifying this with the increase in extraordinary expenses due, also, to accompanying children to school.

The Judge took into account the fact that, in the meantime, the man had also had to provide accommodation, having left their shared home, for which he was also charged rent, in addition to the shared payment of the mortgage.

Among other things, the man’s ex-wife’s income had not suffered during the period. The Court did not rule out the possibility of changing, in the future, the amount of the increasing allowance, as it is possible that, at the end of the emergency, the man’s income will increase and thus he will have the capacity to contribute more to the support.

In line with this judgement came ruling 851 of July 1, 2020, issued by the court of Ancona, in which it established that, where the crisis has affected the spouses’ incomes and minimizes the income disparity between the two, support allowance is to no longer be paid.

The Court of Turin, called to decide on a similar situation, considered that, if one of the two spouses had lost their job due to consequences of the Covid-19 pandemic, they must be financially supported by the other spouse who can count on others to help.

The judgements reflect in the favour of the spouse who has suffered economic consequences fue to the pandemic, albeit for a limited period of time, until waiting the emergency subsides and the possibility opens to re-discuss the support amount.

It is not only in exceptional events as in the current Covis-19 pandemic to revise support allowances for children and former spouses, however it is that in this particular historical period, the crisis has touched, unpredictably, productive sectors in surplus, so that the risk of cases brought before the court has increased exponentially.

Mediated negotiation to speed up modification times

To request adjustments to separation/divorce agreements, where there is an agreement between the parties already in place, mediation (or assisted negotiation procedure) can be utilized. This means that the case will not be brought to court, considering that these situations are pressing, lawyers can act on behalf of the client in an out-of-court modification to the conditions of a separation or divorce.

The appointed lawyer will assist in procuring documentation related to the economic standing of the ex-spouse or parent, which requires revision of the contribution amount and will set out the terms by which the new terms will be respected, by mutual agreement.

Especially in situations where the ex-spouses cannot come to a mutual agreement, it is even more important to be assisted by a well-prepared lawyer who is able to mediate with a sense of urgency.

In the event that a spouse needs to reduce or suspend support payments, it is always best to contact a lawyer to discuss the options available to you. With an in-depth assessment of each individual case an understanding of whether demonstrable conditions exist in order to successfully prove to the court the necessity to change the support payment terms, or if an out-of-court mediation is the best solution for your specific needs.

Our experience legal team are available to assist in all matters relating to family and divorce law, including mediation related to support payments. To discuss your options with a qualified lawyer, please contact us here.

 

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Calogero Boccadutri
Managing Partner

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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