How is child maintenance determined?

HOW IS CHILD MAINTENANCE DETERMINED?

In Italy, both parents have a legal and moral duty to provide for their children’s maintenance. This obligation does not cease upon separation or divorce and is designed to ensure that children’s needs are met and that they can maintain a standard of living that is, as far as possible, analogous to the one they enjoyed when their parents were cohabiting. The determination of child maintenance is not arbitrary. It follows the principle of proportionality established primarily by the Article 337-ter of Civil Code according to which, unless the parents agree otherwise, each parent must provide for the maintenance of their children in proportion to their respective incomes.  This principle is reinforced by Article 316-bis, which specifies that parents must fulfil this obligation based on their respective financial resources and their capacity for professional or domestic work.

To implement this principle, the court typically orders the payment of a periodic allowance (assegno periodico). This allowance is usually paid by the non-placing parent to the placing parent, who manages the child’s daily needs. The purpose of the allowance is to balance the contributions of both parents, ensuring that the financial burden is shared equitably.

WHAT CRITERIA DOES THE COURT USE TO CALCULATE THE ALLOWANCE?

The judge determines the amount of the maintenance allowance based on a comprehensive evaluation of several factors outlined in Article 337-ter of the Civil Code. These criteria are:

1. The Child’s Current Needs: This includes not only basic necessities like food and clothing but also extends to housing, education, sports, health, and social needs, ensuring the child’s complete moral and material well-being. The needs are also assessed in relation to the child’s age, as they are known to increase with growth.
2. The Standard of Living Enjoyed by the Child During Cohabitation: The separation should not negatively impact the child’s quality of life. The maintenance should allow the child to “tendentially” maintain a lifestyle similar to the one they had before the family breakdown.
3. The Time the Child Spends with Each Parent: The amount of time the child resides with each parent is a relevant factor, as it affects the direct costs borne by each for the child’s care.
4. The Economic Resources of Both Parents: The court conducts a comparative assessment of both parents’ financial situations. This includes not just declared income but all assets, property, and potential earning capacity.
5. The Economic Value of Domestic and Caregiving Tasks: The law recognises that the parent who handles most of the daily caregiving and domestic tasks for the child is already contributing significantly. This non-monetary contribution is given an economic value and factored into the calculation of the allowance.

WHAT DOES THE MAINTENANCE ALLOWANCE COVER?

In practice, a distinction is made between “ordinary” and “extraordinary” expenses, even though the legislator does not explicitly define these categories. This distinction helps to apply the principle of proportionality to all the child’s needs.

• Ordinary Expenses: these are predictable and routine costs necessary for the child’s daily life. They are covered by the monthly maintenance allowance. Examples include food, clothing, housing contributions, school canteen fees and basic school supplies, public transport costs, minor medical expenses for common ailments (e.g., over-the-counter medicines).
• Extraordinary Expenses: these are costs that are unforeseeable, unpredictable, or particularly significant, and thus fall outside the scope of the monthly allowance. They are typically shared between the parents, often on a 50/50 basis, unless the court orders a different split based on their respective incomes. Court protocols often provide detailed lists to guide parents.

HOW ARE THE PARENTS’ ECONOMIC RESOURCES ASSESSED?

To ensure a fair and proportional contribution, the court undertakes a thorough assessment of each parent’s financial capacity.

• Comprehensive Evaluation and Financial Documentation: The judge is not limited to examining tax returns. The assessment includes all economic elements, such as real estate, investments, and overall lifestyle, to form a complete picture of each parent’s resources.
• Work Capacity: The court considers not only current income but also the potential earning capacity (capacità di lavoro) of each parent, both professional and domestic. A state of unemployment does not automatically exempt a parent from their maintenance obligation; the court will evaluate their ability to find employment and contribute, even if minimally.
• Power of Investigation: If the financial information provided by the parents is insufficient, incomplete, or contested, the judge has the authority to order an investigation by the tax police (polizia tributaria) to ascertain the true income, assets, and overall financial standing of the parents.