16 August, 2017

How the appreciation of the alimony amount is decided during the legal separation proceeding in Italy – Separation proceeding with the legal advice of an Italian qualified lawyer specialized in family law

In Italy, during both the legal divorce proceeding and the legal separation proceeding the alimony amount (assegno di mantenimento), provided in favour of the husband or wife, is subjected to an appreciation (rivalutazione) pursuant to Italian law, also in accordance with the modified economic situation of involved people. The legal advice of an Italian qualified lawyer specialized in family law is appropriate in order to trigger the necessary protections set forth under the Italian law in favour of the spouses, also from the economic standpoint.

Who, for example, could file for the appreciation of alimony during the separation or divorce proceeding, 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.

 

The appreciation of the alimony amount in Italy

 

The alimony amount that the Court disposes during the separation proceeding is calculated in accordance with a specified purchase power. However, time passing the depreciation of the currency could determine a huge loss of this power. That’s why a yearly appreciation of the alimony amount is provided for under the Italian law on the basis of ISTAT indexes, usually the one called “FOI”.

This appreciation is compulsory also in case the Court has not expressly indicated it in the separation sentence. Consequently, the appreciation is always due at any time, within the respective five-year term of limitation (prescrizione quinquennale).

It means that each year the obliged party must calculate, and consequently pay, the amount “updated” with respect to the amount determined by the Court without a necessary express request on this purpose by the beneficiary spouse. In case of failure, this latter, with the legal advice of an Italian qualified lawyer specialized in family law, can proceed with an injunction deed (atto di precetto) to request the lacking amount of money. If the payment does not occur, it is possible to proceed with a foreclosure (pignoramento) e.g. concerning the bank account, the salary or a house owned by the spouse in breach of payment. These procedures of debt collection may be carried out also if the obliged spouse is abroad or if he/she owns asset(s) outside Italy.

 

In Italy the appreciation can be applied in accordance with the value of the foreign currency

 

To the spouses it is allowed to agree upon a tailor-made appreciation in all cases where the beneficiary spouse moves abroad, in a country where the respective currency suffers a much higher inflation in comparison with the one in Italy.

In this case a compulsory rule exists: the amount, updated in accordance with the agreed index, can never be lower than the amount disposed by the Court, this amount remaining the minimum one to pay. Let’s think about cases where a negative inflation may occur and an upgrading to this purpose could result in an amount which is smaller than the one disposed by the Court. The obliged spouse shall not pay the updated amount but shall pay, at least, the amount disposed by the Court during the legal separation proceeding.

In these cases, we shall also take into consideration another aspect of the matter: while ISTAT updating is automatic and, in case of missed payment of this update (as mentioned earlier), it is allowed to proceed with its debt collection also if in the separation or divorce sentence or in the filed minutes of hearing it is not expressly indicated. A tailor-made updating, on the contrary, must be expressly approved by the Italian competent Court otherwise, in case of breach of payment by the obliged party, its debt collection is not possible.


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