Divorce in Italy follows a different legal path than in the United States. Until 1970, divorce did not exist in Italian law at all, and the process has been progressively modernized, most recently by the “short divorce” reform of 2015 that dramatically reduced waiting periods. For Americans living in Italy or married to Italian citizens, understanding the separation requirement, property division rules, custody framework, and cross-border implications is essential. This guide covers the full process from initial separation through final divorce decree.
The Two-Step Process: Separation Then Divorce
Italian law requires a mandatory separation period before a divorce can be granted. This is the most significant difference from the U.S. system, where divorce can often be filed immediately.
Step 1: Legal Separation (Separazione)
Before you can divorce in Italy, you must first obtain a legal separation (separazione legale). This can be done through two paths.
Separazione consensuale (consensual separation) is available when both spouses agree on the terms: division of assets, spousal maintenance, child custody, and living arrangements. This is faster, cheaper, and less emotionally draining. It can be formalized before a judge (a brief court hearing), through negoziazione assistita (assisted negotiation through lawyers, without a court hearing), or before the mayor (sindaco) of the comune if there are no minor children, no children with disabilities, and no property transfer agreements.
Separazione giudiziale (judicial separation) is necessary when spouses cannot agree on terms. One spouse files a petition with the Tribunale (court), and a judge decides on asset division, maintenance, custody, and the family home. This process involves hearings, potential expert evaluations, and can take 1 to 3 years depending on the court’s caseload and the complexity of the dispute.
During separation, both spouses retain the legal status of married but live apart. Financial obligations (maintenance, child support) established during separation remain in effect until the divorce is finalized or modified.
Step 2: Divorce (Divorzio)
After the mandatory separation period, either spouse can file for divorce. Since the 2015 reform (Law 55/2015), the waiting periods are 6 months after consensual separation or 12 months after judicial separation. Before 2015, the mandatory wait was 3 years.
Divorce can be obtained through the same three channels as separation: court proceedings, assisted negotiation through lawyers, or before the sindaco (with the same restrictions as above). The Ministry of Justice oversees the court system handling family law matters.
Financial Aspects of Divorce
Property Division
How assets are divided depends on the matrimonial property regime the couple is under.
Comunione dei beni (community of property) is the default regime in Italy unless the couple opted out at marriage. Under community property, all assets acquired during the marriage are split 50/50, with the exception of personal gifts, inheritances, and assets owned before the marriage.
Separazione dei beni (separate property) means each spouse retains ownership of what they individually earned or acquired. Many couples, especially those with business interests or significant premarital assets, choose this regime at marriage or switch to it during the marriage through a notarial deed. For property considerations, see our property guide.
Spousal Maintenance (Assegno di Mantenimento and Assegno Divorzile)
During separation, the higher-earning spouse may be ordered to pay an assegno di mantenimento (maintenance allowance) to the lower-earning spouse. The amount considers the standard of living during the marriage, each spouse’s income and assets, the duration of the marriage, and each spouse’s contribution to family life (including homemaking and childcare).
After divorce, the maintenance transforms into an assegno divorzile (divorce allowance). Following landmark rulings by the Italian Supreme Court (Corte di Cassazione, particularly ruling 18287/2018), the divorce allowance is no longer automatically based on maintaining the marital standard of living. Instead, courts now apply a mixed compensatory-assistive approach, considering the sacrifices made by the lower-earning spouse during the marriage (career sacrifices, caregiving), the duration of the marriage, the age and health of each spouse, and each spouse’s capacity to earn. This has generally resulted in lower and more time-limited maintenance awards than under the previous approach.
The Family Home
The family home is typically assigned to the parent with primary custody of minor children, regardless of who owns the property. This assignment continues until the children are economically self-sufficient (which in Italy can extend well into the children’s twenties if they are still studying or unable to find employment).
Children: Custody and Support
Shared Custody (Affidamento Condiviso)
Since Law 54/2006, shared custody is the default in Italy. Both parents retain parental authority (responsabilità genitoriale) and are expected to participate in major decisions about the child’s education, healthcare, and religious upbringing. The child typically has a primary residence (collocamento prevalente) with one parent and a structured visitation schedule with the other.
Child Support (Mantenimento dei Figli)
Both parents are obligated to support their children in proportion to their respective incomes. The non-custodial parent (the parent without primary residence) typically makes monthly payments covering the child’s ordinary expenses. Extraordinary expenses (medical, educational, extracurricular) are usually split proportionally. Child support obligations continue until the child is economically self-sufficient, which Italian courts have interpreted broadly. Unlike in the U.S., there is no automatic cutoff at age 18.
International Dimensions
Which Country’s Law Applies?
Under EU Regulation 2019/1111 (Brussels II ter), jurisdiction for divorce generally lies with the country where both spouses are habitually resident, where the spouses were last habitually resident (if one still lives there), or where the respondent is habitually resident. For Americans living in Italy, this typically means Italian courts have jurisdiction. However, under EU Regulation 1259/2010 (Rome III), spouses can agree in advance on which country’s law applies to their divorce.
Recognition of Foreign Divorces
An Italian divorce is automatically recognized throughout the EU. For recognition in the U.S., the Italian divorce decree generally needs to be authenticated and may need to be filed with the relevant U.S. court. A U.S. divorce is recognized in Italy if it was issued by a competent court and does not conflict with Italian public policy. Contact the U.S. Embassy for guidance on cross-border recognition.
International Child Abduction
Both Italy and the U.S. are signatories to the Hague Convention on International Child Abduction. If one parent removes a child from Italy without the other parent’s consent, the Hague Convention provides a legal mechanism for the child’s return. This is a serious criminal and civil matter in both countries.
Same-Sex Dissolution
Same-sex couples in civil unions (under the Cirinna Law, Law 76/2016) can dissolve their union without the mandatory separation period. The dissolution process is otherwise similar to divorce, including provisions for maintenance and property division.
Practical Considerations
Finding a Lawyer
Family law is a specialization in Italy. Look for an avvocato specializing in diritto di famiglia (family law) through the local Ordine degli Avvocati (Bar Association) or the Consiglio Nazionale Forense. For international cases, seek a lawyer experienced in cross-border family matters. Initial consultations typically cost EUR 100 to EUR 300.
Costs
A consensual separation and divorce (both uncontested) typically costs EUR 1,500 to EUR 4,000 total in legal fees. A contested separation and divorce can cost EUR 5,000 to EUR 20,000+ per spouse, depending on complexity and duration. Court fees are relatively modest (EUR 98 to EUR 518 depending on the value of claims). Legal aid (gratuito patrocinio) is available for individuals with income below approximately EUR 12,838 per year.
Timeline
Best case (consensual): separation hearing or assisted negotiation (1 to 2 months), 6-month waiting period, divorce filing and hearing (1 to 2 months). Total: approximately 9 to 12 months. Contested: judicial separation (1 to 3 years), 12-month waiting period, divorce proceedings (6 months to 2 years). Total: 2 to 5+ years.
Frequently Asked Questions
Can I file for divorce in Italy if I was married in the U.S.?
Yes, if you meet the jurisdictional requirements (primarily, habitual residence in Italy). The divorce will be governed by Italian law unless you and your spouse agreed otherwise.
Does adultery affect the divorce outcome?
Adultery can be grounds for a “fault-based” separation (separazione con addebito), which can affect the right to maintenance (the at-fault spouse loses the right to receive maintenance) and, in some cases, inheritance rights. However, it does not significantly affect property division or child custody decisions.
What happens to our Italian property?
Under community property rules, property acquired during the marriage is split 50/50. Under separate property, each spouse retains what they own. The family home may be assigned to the custodial parent regardless of ownership. See our legal system guide for broader context on Italian property and family law.