Divorce process in Italy: separation, alimony, residence of children and spouses

Separation («separazione tra coniugi») - the establishment by the Italian court of the status of separate living for spouses before making a final decision on divorce. There is no such institution in Russian family law.

The divorce process in Italy consists of two stages:

- Legal separation (separation)

- Decision on divorce

Separation can be by mutual agreement of the parties, where the spouses themselves determine how they will live during and after the separation, or by court decision, when both cannot agree on the consequences of separation. In this case, the court allows the spouses to live separately under conditions determined by the judge, primarily to ensure the well-being and upbringing of children.

Judicial separation is established by the court at the request of one or both spouses and may be coupled with fault, when one of the spouses is blamed for the breakdown of the family (in Russia, it does not matter whose fault the breakdown of marriage is).

Of course, separation can also be factual, when spouses decide to stop living together without legal formalization of this fact, as a result of which each is responsible for their own fate without showing interest in the other. Such de facto separate living does not have any legal consequences for the spouses, and this is not sufficient to shorten the three-year period for obtaining a divorce. Factual separate living can be the reason for starting legal proceedings for judicial separation.

If you are a defendant in the case, you will receive from the plaintiff's lawyer a judge's decision to initiate civil proceedings, notices, and the lawsuit itself. Do not be surprised, in Italy lawyers handle notifications.

As examples, I will provide you with court documents from real cases.

NOTIFICATION (SUMMONS)

COURT OF ROME

President,

Having examined the lawsuit for judicial separation (ricorso per separazione giudiziale) submitted in writing under R.G.N. No. 1680/2019, schedules the hearing for the case on 09/10/2019, for the personal appearance of the parties;

Orders that the plaintiff (ricorrente) notify the defendant (resistente) of the lawsuit and this Order by 18/09/2019;

Sets the deadline for the defendant to prepare their objections and documents by 30/09/2019;

Directs the parties to submit tax declarations for the last three years.

Rome, 10/07/2019

President _________

SAMPLE STATEMENT OF CLAIM

IN THE TRIBUNAL OF ROME

Divorce Action between Spouses

Plaintiff: _______________, born on _______________ in the city of ___________ and residing there at the address: "____"________ since ________ years, CF: ________, represented by lawyer __________ from Rome. No._____, telephone and FAX ______, e-mail: ________________, whose office is located at: ___________________,

acting on behalf under the power of attorney attached to this claim.

vs.

Defendant: _______________, born on _______________ in the city of ___________ and residing there at the address: "____"________ since ________ years, CF: ________.

TAKING INTO ACCOUNT:

- The plaintiff "___"_______ _________, in ____ (Russia Federation) entered into a civil marriage with Х., born on ________ ________ in the city of Rome at the address: ____________, CF: ________, as evidenced by the marriage certificate (Annex 1), filed with the civil registry of the municipality of Rome N.______, year 2000;

- From the marriage the following children were born: _________________;

- States that the family currently resides in Rome at ________ Street in an apartment belonging exclusively to the plaintiff, as it was received before the marriage as a gift from the mother. Repairs and furniture were made before and during the marriage, but the wife did not contribute her share, as she has never worked anywhere;

- Description of the plaintiff's identity, financial position, health status, etc.

- The property regime - separate ownership of assets.

Further, personal relationships between the spouses can be described, how long they have slept in separate beds, in different rooms, how unbearable living under the same roof is. The relationships with children, the contributions of the spouses to their development and upbringing, affection, the order of communication, the daily routine of the parents and children, relationships with immediate family members.

Considering the above, the plaintiff in accordance with Article 151 of the Civil Code, Article 706 of the Code of Civil Procedure, -

REQUESTS:

That the President of the Tribunal appoint a date for the personal appearance of the parties and, in case of a negative outcome of the conciliation attempt, take appropriate temporary and urgent measures, namely:

a) that the family home, an apartment in Rome at ________ Street, be given for residence to the children _______________, and that their mother be allowed to live with them until they reach the age of majority (18 years). The mother has the right to reside there exclusively alone, without the presence of unrelated men. Her personal life must be outside the home so as not to upset the children who are in their infancy and will suffer from the replacement of their father with another person;

b) that the plaintiff vacate the apartment when this action is filed in the court of Rome. He will temporarily reside with his parents at: ______________;

c) that the children will be under the joint care of the parents, but will live with their mother in the family home; the plaintiff may spend at least four hours a day with his children, perhaps during the day, since he is responsible for making his son do his homework. Other times can also be agreed upon, if the defendant finds work. In this case, the plaintiff may be with the children during working hours of the mother;

d) that considering the school schedule and the obligation to complete the homework when the children are free, they can visit the house where the plaintiff lives and interact with his family members when they want to do so and to be able to have lunch with him and their father;

e) the plaintiff informs the Court that he opposes the departure of children abroad, since previously the defendant had accepted attempts not to return from Russia, namely: ______________________. For this reason, in order to avoid what happened, since the defendant is not trustworthy in her desire to stay in Italy, the plaintiff does not agree to the departure of minors for their safety. The description of the terrible conditions in which children lived in Russia may follow;

f) that a couple of weekends a month or at least on Saturday or Sunday, the children should have the opportunity to spend a day and a night with their father in his new apartment;

g) during the Christmas holidays, the children spend a week with their father and a week with their mother, alternating weeks each year. On Easter, 3 days with father and 3 days with mother. In summer, the father asks for 25 consecutive days to spend with his children. These days should be coordinated between July or August. Also, for example, if in the summer, the defendant wants to go to Russia, the plaintiff will live with the children in their family home until the mother returns;

h) that the plaintiff will pay the bills for utilities and purchase food for the children. Unforeseen expenses, by agreement, amount to 50% between spouses;

i) that the defendant does not pay any allowances to the defendant for its maintenance because it is young, healthy and can find work. And all circumstances of the defendant's negative behavior will be presented at the stage of evidence presentation. Spouses provide for themselves with the obligation of mutual respect and, in addition, the plaintiff asks the Judge to investigate (Giudice istruttore), to continue the judicial process, establish the following at this moment:

The Tribunal of Rome must not agree to any request for a reversal.

Announce the separation of the spouses _________Name __________;

Establish joint custody of the minor children __________, but residing with their mother in the family home;

Assign the children the family home, which is the personal property of the plaintiff, allowing the mother to live there until the children reach the age of majority;

Establish that the plaintiff lives outside the specified apartment, but after lunch may remain several hours with the children, who are in their infancy;

Establish that the plaintiff may reside in the apartment and support the children when the mother is working;

Maintain the plaintiff's payment of bills for utilities and the supply of food necessary for the children in the amount of 300.00 euros;

Establish that the defendant is taking measures to ensure care for the children; that no support is awarded to the defendant for its maintenance;

The plaintiff will be able to see his children whenever he wants in addition to the hours established daily, according to the school and extracurricular obligations of the latter, in no way limiting the life of the defendant and not affecting his personal life. If the defendant's parents come to live in Italy from Russia in the apartment owned by the plaintiff, the defendant must pay half the cost of the utility bills. The documents mentioned in the attachments to the lawsuit are surrendered to the court for storage.

Rome, "____" ___________ 2019

Lawyer __________

TRIBUNAL OF ROME

Resolution on Separation

President -

Taking into account the facts and considerations presented by the parties;

- Considering Articles 708 of the Civil Procedure Code (CPC) and 155 of the Civil Code (CC);

- Having examined the documents, removes the caveat made at the preliminary hearing __/__/2019;

- Noted that in the current circumstances and without prejudice to further investigation, the defendant is not employed, and the appellant is incapacitated;

- Indicated that legal separation of spouses does not lead to the termination of marital relations, but only to the suspension of personal obligations, and that alimony is intended to allow the economically weaker spouse, lacking means of support, to maintain a standard of living comparable to that provided by the spouses' financial means;

- Noted that two minor children were born of the marriage and conditions exist for joint custody, whereby the children will reside with the mother;

- It is appropriate to specify that, in order to prevent or reduce possible disputes regarding the determination of expenses and their regime, a distinction is made between ordinary and unforeseen expenses:

Expenses included in the alimony: food, clothing, housing contribution (including utilities), school fees (excluding university), school supplies, food, over-the-counter medications (including antibiotics, antipyretics, and any medications necessary for the treatment of common and/or seasonal pathologies), urban transport expenses (bus pass and metro card), fuel, mobile phone recharge, educational outings regularly organized by the school; preschool, extracurricular education, if already present in the family organization prior to separation; cosmetic procedures (hairdresser, beautician, etc.), regular recreational activities (cinema, parties, and public events), care for the children's pets (unless acquired post-divorce or separation).

Extraordinary expenses, with the agreement of both parents, are divided into the following categories:

1. School education: enrollment and tuition fees in state schools, as well as enrollment, fees, and any living expenses at state and private universities, tutoring, educational trips organized by schools, preschools, extracurricular activities, and childcare, if necessary due to the parents' separate residence;

2. Recreational or extracurricular expenses: language courses or artistic activities (music, drawing, painting), computer courses, summer camps, educational trips, holidays spent independently without parents, expenses for the acquisition and extraordinary maintenance of means of transport (mini-car, car, scooter, motorcycle);

3. Sports expenses: sports events, including equipment and all necessary items for participating in competitions;

4. Medical expenses: surgery expenses, dental, ophthalmic, and medical expenses not covered by the National Health Service (NHS), medical expenses and hospitalization expenses for operations in state or private institutions under special agreements, diagnostic tests, clinical analyses, visits to specialists, psychotherapy and speech therapy organization of receptions, holidays, and celebrations for children;

Extraordinary mandatory expenses, which do not require prior agreement: school textbooks, expenses for emergency medical care, purchase of prescribed medications, except over-the-counter medications, expenses for an operation that cannot be postponed in state and private institutions, orthodontic, ophthalmic, and medical expenses, carried out through SSN in the absence of a treatment agreement with a private specialist, stamp duty and vehicle insurance expenses.

In order to consider the consent of the other spouse acquired, if necessary, the period for expressing their disagreement is set at twenty days; both requests and consent/disagreement must be documented.

THEREFORE, THE COURT:

1) Allows [Name and Surname] and [Name and Surname] to live separately;

2) Appoints joint custody of the minor children, with the mother continuing to reside in the family home; the father may have them with him twice a week, specifically on Mondays and Wednesdays from 17:00 to 20:00 by agreement with the mother and taking into account the children's needs, and alternately on Saturdays at 16:00 and Sundays at 19:00. Regarding holidays:

- Christmas holidays, alternately with the father and mother, so that one is with the children on Christmas Eve and the other on the 25th;

- During the Easter holidays, the parents must leave the minors alternately on Easter Day or Easter Monday;

- During the summer holidays, the father has the right to keep the minors with him for twenty-five consecutive days in July and fifteen days in August, which must be agreed upon in advance by the end of May and taking into account the minors' needs;

3) Orders the plaintiff to pay a monthly allowance of 350.00 euros (125.00 euros per child and 100.00 euros for the defendant) as maintenance for the minor children and the defendant, with this amount being indexed annually according to ISTAT indices and paid within the first five days of each month. Determines that each is responsible for 50% of emergency expenses;

4) Appoints Dr. [Name and Surname] as the judge of first instance, before whom, after notifying the prosecutor of the case upon his request, the case is postponed for appearance at the hearings, with a session scheduled for [Date] ______ 2020.

Orders the plaintiff to notify the defendant of this decision within the time prescribed by law.

Rome, __/__/2019

President _____________