NOTES ON DIVORCE IN ITALY
We handle international family law cases that have an Italian connection. We always act in collaboration with Italian or other local counsel as appropriate.
There are two types of legal separation in Italy. The first is consensual separation, which stems from a mutual agreement between husband and wife, and which is then approved by the court. The second is judicial separation, in which hearings and discussions are normally involved before an agreement is reached and the judge determines which spouse is responsible for the failure of the marriage.
Divorce in Italy may be obtained on one of the following grounds: After the court has approved consensual separation; after judicial separation; when one spouse has been sentenced for certain criminal offenses; when one spouse is a foreign citizen and has obtained a divorce or has married again abroad; or when the marriage has not been consummated.
If the divorce is based on mutually-requested separation, it may only be obtained after six months of continuous separation beginning on the date the spouses appeared before the court in the proceedings for legal separation. If the divorce is based on a separation that was obtained by one spouse alone, the waiting period is 12 months.
The judge will determine which spouse will have custody of the children, if any, and establish the type and amount of support the other spouse will provide. At any time after the separation, the spouses may request a review of the conditions on which the separation was granted, especially in regard to the exercise of parental authority, amount and type of child support. Spousal support may also be sought if the spouse seeking support was not at fault for the separation and has no means or insufficient means for his or her support. The same comments as above apply to division of American retirement benefits, especially military pensions; this can only be done by U.S. courts.
A petition to obtain the dissolution of the marriage must be filed with the court within the territorial jurisdiction of which the petitioner resides, or before any court of the Republic of Italy if both spouses reside abroad. Following the divorce, the woman normally loses the last name of the former husband. The procedure is as follows:
First, the parties have to obtain a separation decree. This is mandatory. Separation can be consensual or judicially imposed. In general, consensual-separation divorce proceed fairly quickly; judicial procedures, on the other hand, are more time‑consuming and depend upon the individual circumstances.
After at least a 6 or 12 month separation (see above), one of the parties may file for divorce. They do not have to file for this, but obviously it's the only way they can get remarried. There is no time limit on getting a divorce.
A joint divorce, where both parties agree, follows a quick hearing. The judge makes a decision, which is finalized approximately one month after the decision, but this time period varies. There are no guarantees on the length of time necessary for any of these processes. An estimate of cost, including attorneys, would be between 2 and 3 million lire.
The judicial divorce takes longer, depending upon the how many and what kind of questions need to be resolved by the court. No cost estimate is available for this, since it depends on the questions and issues involved.
An attorney is probably necessary for both types of divorce. The parties should obtain an attorney in the same manner as they would back in the U.S. -- referral from another attorney, telephone directory, advertising, or references from friends or relatives.