What economically changes between separation and divorce?

Differences between separation and divorce: the prerequisites for alimony are different between the two.

There are still many differences between separation and divorce when it comes to the prerequisites for recognizing and quantifying alimony. However, judges (especially those at the first instance) are increasingly trying to bring the two institutions closer together to eliminate discrimination and contradictions in court rulings. In concrete terms, what changes economically between separation and divorce? In short, what changes is the purpose of the allowance, which in the first case aims to ensure the same standard of living for the poorer spouse, while in the second case, it serves to guarantee self-sufficiency.

In this brief article, we will try to better understand the differences between the two procedures that can now be initiated with a single legal action, thanks to the Cartabia reform, while maintaining their differences regarding prerequisites and effects. But let’s proceed step by step.

What are the differences between separation and divorce?

Separation does not definitively cancel all the effects of marriage but only some of them. It is, therefore, a sort of intermediate step.

In particular, with separation, the obligations of cohabitation and fidelity cease. Therefore, each of the two former spouses can engage in a new relationship openly without fearing consequences.

However, succession relationships (the two former spouses are still legal heirs of each other) and mutual assistance duties are not eliminated (maintenance is, therefore, still owed).

The community is dissolved with separation. Therefore, all assets, including savings in current accounts and property (unless the spouses had chosen the separation of property regime), must be divided. In the absence of an agreement between the parties, this division is carried out by the judge.

In the case of separation, the former spouse is not entitled to the share of the TFR (Trattamento di Fine Rapporto – severance pay) accrued and obtained by the other spouse, but there is the right to survivor’s pension in the event of sudden death.

Differences between separation and divorce regarding alimony

The allowance granted to the economically poorer spouse following separation is called maintenance. Instead, with a divorce judgment, the allowance is called alimony. However, this is not just a terminological difference. There are two profound distinctions, especially on a substantive level. Let’s see them below.

Prerequisites: maintenance allowance is granted only by demonstrating income disparity between the husband and the wife. The divorce allowance presupposes two other conditions (which must be proven by the requesting spouse): a) the objective impossibility of being self-sufficient; b) the absence of fault on the part of the requesting spouse.

Quantification: the maintenance allowance aims to restore the same standard of living that the requesting spouse had when they were still married. The divorce allowance is aimed at ensuring only economic self-sufficiency, meaning a decent standard of living but not necessarily equal to that of the former spouse. The important thing is that the “poorer” spouse can provide for their own needs.

We will see in the following chapters how these variables influence the concrete determination of the allowance by the judge.

Criteria for determining maintenance and divorce allowances

More and more judges are trying to equate the maintenance allowance with the divorce allowance. Therefore, it is not difficult to find judgments that require the same stringent conditions for the former as those that the Cassation Court has now imposed for the latter. However, the main distinctive elements still remain, which we will list below.

Standard of living

The maintenance allowance granted following separation aims to restore the same standard of living that the couple had before the crisis. This means that the wealthier one of the two spouses is, the higher the allowance will be.

However, this function ceases with divorce. From this moment on, it is only necessary to guarantee self-sufficiency. Therefore, the allowance will be measured not by considering the economic conditions of the obligated spouse but the needs of the requesting spouse. This means that if the requesting spouse already has a decent income (such as that of a secretary or teacher), they will not be granted any allowance.The absence of fault

In the recognition of maintenance, the judge mainly verifies the presence of an economic disparity. However, when granting alimony, the judge checks that this disparity is not due to blameworthy behavior on the part of the requesting spouse. Therefore, nothing will be owed to the spouse who, although unemployed, still has earning potential, meaning they can work. This occurs with a young, healthy individual or one with education or work experience. For example, the Cassation Court has excluded maintenance for a former wife with a professional qualification that could be used in the job market, even though she had few clients.

The party requesting alimony must also prove that they have done everything to find employment. Therefore, proof of one’s economic incapacity is not enough. It will be necessary to prove that they have registered with employment centers, participated in job openings and competitions, applied for job interviews, requested their employer to extend their part-time contract to full-time, etc. Maintenance is not granted to someone who sits idly on the couch. As the Cassation Court has said, marriage is not economic insurance for life.