Separation and divorce only count the tax returns or also assets and hidden income?
Ordinance no. 22616 of 2022 of the Court of Cassation places a further element on the income to be considered in terms of maintenance allowance following the judicial separation.
The judge, pronouncing the separation, establishes, on the basis of art. 156 of the civil code, for the benefit of the spouse who is not responsible for the separation, the right to receive from the other spouse what is necessary for his maintenance, if he does not have adequate income of his own. It also provides for establishing the maintenance allowance for minor children and adult children who are not yet economically independent, taking into account the parameters indicated by art. 337 ter of the civil code
The Cassation, reaffirming its consolidated jurisprudence, held that
The jurisprudence of legitimacy is consolidated in the belief that the trial judge, in order to quantify the maintenance allowance, cannot limit himself to considering only the income emerging from the tax documentation produced, but must also take into account the other elements of an economic nature, or in any case appreciable in economic terms, other than the income of the injured party, likely to affect the conditions of the parties, such as the availability of substantial assets, including movable assets, and the conduct of a particularly comfortable and luxurious lifestyle.
In the event of disputes, the court orders investigations into the income and assets of the spouses and their actual standard of living, also making use of the tax police, a provision reiterated also with regard to the child support allowance.
From the analysis of the rules set by the Legislator, for the Cassation it is clear that what is relevant, for the purpose of determining the maintenance allowances of the spouse and children in the event of separation, is the assessment of the standard of living conducted by the spouses when they lived together, regardless, therefore, of the origin of the income or assets enjoyed by the latter. Income hidden from the tax authorities also assume importance, in relation to which the law provides for procedural tools, even unofficial ones, which allow their disclosure for the purposes of the decision.
This function is performed by the investigations of the tax police. In the face of incomplete or unreliable results, the judge has the option of resorting, even ex officio, to this means of seeking evidence. If he deems that the evidence offered is not sufficient or reliable, in fact, it is the judge himself who, through the tax police, intervenes by giving unofficial instructions, to ascertain the real economic and patrimonial situation of the spouses.
From this point of view, the Supreme Court held that the "power" of the judge to order tax police investigations should be considered as a "duty" imposed by the "mere objection" of the parties regarding their respective economic conditions.
The relative request and the contestation of the facts affecting the income position of the spouse must, in fact, be based on specific and detailed facts. Therefore, it is not enough to generically challenge the veracity of the allegations and proofs of others, but concrete facts must be offered, capable of calling into question the representation of the opposing party with regard to the living conditions of the parties, as happens precisely in the case in which to which revenue hidden from the tax authorities is expected. For the Supreme Court, it is a question, in summary, of the need to bring out detailed elements regarding the incompleteness or unreliability of the representation of the income or capital conditions of the parties. Furthermore, if the party has offered concrete and specific elements in support of the tax police's request for investigations, the trial judge cannot reject the request and, at the same time, also reject the questions based on it.
On the subject of judicial separation of spouses, for the purpose of determining the maintenance allowance in favor of the economically weaker party and of minor or adult children but not economically self-sufficient, it is necessary to ascertain the standard of living of the family during the coexistence of the spouses regardless from the origin of the income or assets enjoyed, thus also taking on importance the income hidden from the tax authorities, for the assessment of which the law provides for unofficial procedural tools, such as investigations by the tax police.
Lawyer Armando Cecatiello Familiar Milan Lugano