With a recent ruling, the Supreme Court (Cass. sent. n. 789 of the 13.01.2017) has established that the ex-wife who has the skills and the preparation to allow her to work can not continue to live behind her ex-husband, so it is the latter's right not to pay her the maintenance allowance. According to the Court, only those women who have lost, before separation, every potential earning capacity can demand a monthly allowance (this is the case of a forty-year-old housewife who does not have specific training), while the others must try to stay on their own.
If the woman works - or can work and voluntarily does not - the resulting income (actual or potential) can be assessed by the judge to reduce or completely cancel her right to maintenance. The purpose of the monthly allowance is in fact to balance the economic conditions of the former spouses even after separation. So if the ex-wife's salary allows her to have the same standard of living as her husband, then she cannot claim maintenance or, at least, will be able to benefit from a lower maintenance.
The problem does not arise when the woman has her own salary or, as an autonomous person, has a tax return: the numerical figure of what has been earned is evident and does not often require further investigation.
Doubts arise instead when the woman is unemployed. The point on which the Court dwells is that relating to the reasons for the failure to find a work placement. In such cases, the Supreme Court distinguishes the cases in which this is due to an incapacity of the woman for having carried out until then, other tasks such as the housewife and, therefore, for not having been able to cultivate her own "job training", from cases instead in which the state of unemployment depends on his attitude, as when he is not working in search of an ideal job position, suited to his ambitions.
The Supreme Court specifies that: "the ex-wife's aptitude for profitable work, as earning potential, constitutes an element that can be assessed for the purposes of determining the extent of the maintenance allowance by the judge, who must take into account not only income in money, but also of any utility or capacity of the spouses susceptible to economic evaluation "and" The spouse's aptitude for work assumes importance in this case only if it is found in terms of the effective possibility of carrying out a paid work activity, in consideration of every concrete individual and environmental factor, and not mere abstract and hypothetical evaluations "
In short: what matters is not so much how much the former wife earns but her concrete and specific chances of earning, regardless of not having found her own work placement.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.