How is Alimony calculated?

DIVORCE ALIMONY

Alimony is a benefit of a welfare nature owed to a person in a state of need by the persons identified in Article 433 of the Civil Code.

The Italian legal system, in response to the principle of assistance and solidarity within the family unit, provides for a series of benefits of a patrimonial nature, which take the form of the payment of a sum of money to those in need by those who are better off.

Such benefits also include alimony, paid to those in need, and who cannot provide for it by working, by persons well identified by the civil code, among whom the spouse stands out.

Alimony, when paid by one spouse to the other as a result of separation or divorce, is to be distinguished from maintenance, whereas the latter is only due under certain conditions and is intended to guarantee the former the preservation of the standard of living enjoyed during the marriage, alimony is due if one of the spouses is disadvantaged and it is supposed it to meet basic needs. Clearly, the other must be able to pay it.

If there are several equal obligors, alimony is paid concurrently, taking into account the economic conditions of each, unless the court temporarily orders that the obligation be borne by only one obligor.

Once maintenance has been awarded, the finding that one of the earlier obligors is in a position to pay maintenance is not of itself sufficient to release the later obligor: for this purpose it is necessary that the court must first have ordered the earlier obligor to pay maintenance.

The amount of the maintenance is determined by taking into account the criteria laid down in Article 438 of the Civil Code, which states that it must be awarded in proportion to both the need of the applicant and the economic conditions of the person obliged to pay it. In any case, their amount must not exceed what is necessary for the alimony recipient’s life, having regard to his or her social position.

In this regard, the case-law has made it clear that when the right to maintenance is recognised and its quantification and the division of the relative burden between several possible obligors, the comparison of their respective economic conditions must be carried out taking into account the situation at hand. This means that possible future situations and events, such as the probable collection of debts, must be disregarded: these, in fact, may be taken into account in a subsequent revision of the maintenance statutes.

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