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When your ex spends child support money on shopping: what to do? Is there a reporting obligation?

Good morning Lawyer,
I am the divorced father of two boys aged 15 and 17, Jacopo and Filippo. I had agreed to pay my ex a check of €5,000.00 per month for the maintenance of my children because I wanted them to be able to maintain the same quality of life they had when we all lived together. I thought the money would be used for the kids, but it didn’t happen that way, because my ex-wife doesn’t take them on holiday, she doesn’t take them skiing like we always did, she makes them go around with broken shoes and it was also refused to contribute to the purchase of the PC and cell phone! The boys are scruffy and with their mother they have a lifestyle that I would define modest. You say that the money isn’t enough, despite the fact that you receive 5 thousand euros net every month, in addition to 75% of the extraordinary expenses of my dependent children.
But does it seem possible to you as a lawyer? We all know that 5 thousand euros net per month is equivalent to a gross equal to at least double, a very high income! Can I request an accounting of the expenses that are made with child support? How can I protect the kids and how can I guarantee that the money I pay to my ex is actually spent on their needs?

Valeria De Vellis, lawyer specialized in family, personal and inheritance law

Dear Dear Andrea,

Let’s clarify one point straight away: the child maintenance allowance is determined taking into account their needs in line with the standard of living they had during their parents’ marriage. The child has the right to be supported, educated and educated by both parents, regardless of any crisis in the couple.
The allowance you pay for your children must, therefore, be spent only on their needs.

Using the child maintenance allowance for a different and personal purpose than that of the actual needs of the children themselves is a conduct that can constitute the crime of embezzlement.

I remember the case of a father who paid a child allowance of three thousand a month and had reported it former wife believing that she was spending the money intended for her children on herself. In that case, the Tax Police Unit of the Guardia di Finanza had carried out investigations by analyzing the bank movements of the accounts in the woman’s name and had detected suspicious transactions but, above all, by examining the POS payments, it had discovered that the money paid by the father for the children had been used to pay high bills in perfumeries, in a beauty center and in women’s clothing stores. In particular, taking into consideration the payments made at the supermarket, in stationery, for household utilities, for petrol and in children’s clothing stores and by analyzing the data of some sample months, it emerged that the mother in question spent on average child support was just over one thousand and fifty per month, therefore just half of what he received fromformer husband to provide for the needs of minors. In light of these objective data, the Public Prosecutor had charged the woman with the crime of embezzlement.

In another case, it was ascertained, again through bank investigations, that the child allowance had been used by the mother to pay the installments of a mortgage taken out for the purchase of a house in her name; therefore, it had been used to finance his wife’s personal investments.
These are all cases in which child support is completely distorted.

The money paid for the maintenance of your children is, in fact, tied to the purpose established by law and cannot be used for other purposes. As the Criminal Court of Cassation noted, the crime of embezzlement occurs when money is given “a destination incompatible with the reasons that justify its possession”.

It is true that the art. 649 of the Criminal Code excludes the punishability of the crime of embezzlement if it is committed to the detriment of the child but, in the case of misappropriation of the maintenance allowance, the offended person is also theformer spouse who paid the allowance in the interest of the child.

In crimes against the family, in fact, each parent who exercises parental responsibility over the minor (and therefore you too as a father) has an interest in ensuring that the child’s money is not squandered or used for purposes other than those provided for by law.

Furthermore, the personal use of children’s money is not correct behavior even from a fiscal point of view, because while the children’s allowance is not taxed, the spouse’s allowance is.

Given this, it is not possible to request a monthly statement of the expenses that are made with the child maintenance allowance. The law does not provide the right of the parent who pays the allowance to request theformer spouse the statement of the expenses actually incurred with the contribution to the maintenance of the children.

The Court of Cassation reiterated that “the allowance paid by the non-custodial spouse, as his contribution to the economic burdens deriving from the maintenance of the children, is determined at a flat rate proportionate to the parents’ assets and the number and needs of the children. The non-custodial spouse does not have, Therefore, right to an account of the expenses actually incurred for the aforementioned maintenance (Cass. Civ., section I, 18 May 2015, n. 12645).

This ruling is not an isolated ruling. Already in the 1980s it was recognized that, when the judge determines the maintenance allowance for children, the related credit is “to be considered as a whole, for the satisfaction of the needs of life in common and without reporting obligation” (Cass. Civ., section I, 23 June 1980, n.3934).

This doesn’t mean that you can’t do anything to react to your partner’s bad attitudes former wife. In fact, you can ask the court to review your child support at an agreed time.

The law provides, in fact, that the allowance can always be revalued, that is, that it can be decreased or increased every time there are “justified reasons“, of the “significant new facts. In his case, the new fact is the diversion of the sums collected from his former wife with respect to the purposes of caring for the children, a fact that she, obviously, will have to demonstrate in court.

This demonstration should be easier today, since following the Cartabia Reform her former wife is obliged to produce, in the judgment for modification of the divorce conditions, all her banking documentation for the last three years, documentation that could prove very useful to prove the spending behavior of the same and to calculate the amount of sums that are actually spent for the children’s needs.

If you could, therefore, document that yours former wife spends the money she receives for the children on herself, it can reasonably be assumed that the judge will reduce the allowance, but could also place the children with her, if he considers that the mother is not suitable to carry out the parental role .

One possibility is that the allowance is reduced and that she takes care of some of the children’s spending items directly and entirely, such as clothing and holidays.

Another practical and creative solution could be to make a deal with her former wife who plans to pay the child allowance into a dedicated current account, jointly held by the parents and funded by both (even possibly to a different extent, i.e. in proportion to each person’s income), to be used only for the children’s expenses. That way, both of you would always have visibility into how the money is being spent and there would be no more arguments. And you would certainly be more willing to pay, because it would be certain that the sums would be used for the needs of their only, true recipients.

In any case, uOnce your children reach the age of majority, you will be able to request that the allowance be paid directly to them, in whole or in part. The fact that there is a certain jurisprudential orientation does not mean that things cannot be changed. So don’t give up, dear Andrea, your goal is right.

As the Romans taught us, justice is the constant and perpetual purpose of living honestly, not harming others and giving everyone their due.

If you want to ask the lawyer for an opinion or share your doubts you can write to:
[email protected]

Source: Vanity Fair

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