25 August, 2017

What to do when the alimony amount is not updated – Protection of alimony with the advice of an Italian qualified lawyer specialized in family law

In Italy, alimony (assegno di divorzio) has to be yearly updated pursuant to Istat’s index. When the spouse (the husband or the wife), who is obliged to pay alimony, does not fulfil his/her duty, in Italy (Italia) he/she risks of receiving by an Italian qualified lawyer specialized in family law a notice concerning an injunction (precetto) on behalf of the beneficiary spouse.

To divorce (divorziare) pursuant to Italian (Italiana) law, entails the knowledge of all the chances of an agreement from the economic standpoint, that’s why it is appropriate to appoint an Italian law firm that has a deep knowledge of family law, also internationally, and may advise the client about the execution of the Italian law.

Who, for example, could have the right to request the updating of alimony, getting a divorce pursuant to the Italian law:

  • An Italian citizen and a foreign citizen, both residing not in Italy but abroad;
  • Two Italian citizens, both residing not in Italy but abroad;
  • Two foreign citizens, residing not in Italy but abroad and who got married in Italy or had lived in Italy or had decided to apply the Italian law;
  • An Italian citizen and a foreign citizen, both residing in Italy;
  • Two Italian citizens, both residing in Italy;
  • Two foreign citizens, both residing in Italy.

Let’s make an example in order to understand better the situation: during a divorce proceeding which ended eight years ago in Italy, the Court has granted the ex-wife with the right to receive the alimony (assegno di mantenimento) by means of monthly recurring payments. Since then, the husband has respected every deadline, paying on time the amount set forth under the divorce sentence, without taking care of the Istat’s updating because, being a foreigner, he does not know the express provisions set forth under Italian law which provide for this specific updating.

Please note that, due to the inflation and to the modification of the value of the currency, also the alimony could lose its purchasing power. Therefore, in order to protect the beneficiary spouse of the alimony, it is provided that the alimony may be updated yearly and that the obliged spouse may pay the “increased” sum in accordance with Italian law.

Timing and chances to recover the updating in Italy

The wife (as in the mentioned example), who for eight years has constantly received the same alimony amount, may request to receive not only the due amounts but also the interests concerning the due amounts, which have not been paid yet. The limitation term (prescrizione) is equal to five years. It means that, if the husband should refuse to pay the full due amounts not yet received, the wife could not obtain the full due amounts for the whole period since the divorce sentence. In this specific case, for instance, the wife will lose all the updating due amounts not received (and the respective interests) concerning the first three years after the divorce sentence.

How to obtain the alimony updating which has never been paid under the Italian law

In order to request all the due amounts concerning the yearly updating of the alimony, as well as to request the respective interests, the beneficiary spouse shall proceed with a formal notice (including but not limited to a registered letter) indicating the exact calculation concerning the amounts already due and not paid yet.

If the obliged spouse does not pay within the terms set forth under the notice, the beneficiary spouse shall proceed with the notice of an injunction (atto di precetto) with the necessary legal advice of an Italian qualified lawyer.

If even this injunction is ignored by the obliged spouse, the beneficiary spouse shall have no other choice than proceeding with the foreclosure (pignoramento) of goods, of the bank account, of one-fifth of the salary or of the retirement benefits of the obliged spouse. In this case, the Italian qualified lawyer shall proceed with a private investigation concerning the goods, which could be the targets of the foreclosure, and which could also be located abroad (in this latter case, it would be appropriate to evaluate, on the basis of the country where the goods are located, which kind of proceeding may be worth to carry out). Please note that currently the enforceable deed issued by an Italian Judiciary court, adequately translated, is enforceable all over Europe and in many other countries of the world without a necessary further civil proceeding in loco in order to obtain the enforceability of the deed.

Therefore, in case of lack of updating (rivalutazione) of the alimony amount, some procedures are available in order to obtain the recovery of the due amount, which have not been paid, but it would be appropriate to proceed in a timely manner, taking into consideration the limitation term (prescrizione) equal to five years.

Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.

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