Conflict over children's expenses, no need for a judge if they are documented

With the spousal separation agreement homologated one can do without the judge in case of a disagreement over school and medical expenses with the custodial parent only if these are documented. For extraordinary disbursements, from parties to sports, you need the prior OK of the ex-spouse who is obliged to share his or her share.

The Cassation, aware of a 'misalignment' in case law on the subject of ordinary expenses as to whether or not precise documentation or a simple allegation is required, chooses the stricter path. And it does so to avoid the proliferation of disputes, which are almost inevitable between exes who often leave each other in less than perfect harmony. Starting from this premise, the judges of legitimacy upheld the appeal of a separated father against a writ of injunction by which he was ordered to pay over three thousand euros for extraordinary expenses.

The Supreme Court recalled - as the Attorney General had already done in his written indictment - that the decree of homologation of the separation of the spouses provided for two distinct types of extraordinary expenses, to be divided 50/50 depending on whether or not they required a pre-emptive agreement. Among these were those relating to entertainment in which, specifically, the disbursements for the 18th birthday party were also included. And on this point for the judges of legitimacy there is no doubt that they should not be returned because they were not agreed upon beforehand with the ex.

The same fate also has the censure concerning ordinary expenses and therefore, medical and educational expenses, for which there is no need for a pre-agreement. On this point the Court of Cassation chooses the more restrictive thesis: one does without the judge only in the presence of documentation and not a simple allegation, as affirmed by the judges of second instance, aligned with the less strict jurisprudence.

If it is true, in fact, explains the Court "that the need not to obtain a further enforcement order, in relation to health and education expenses, is justified by the fact that they are "events of such probability that they can be defined as substantially certain", so that they are, in short, "disbursements to be considered undetermined only in terms of when and how much", the very circumstance that their exact determination is postponed with respect to the formation of the order, requires that they be rigorously documented". And this not only as a guarantee for the debtor, but also to avoid the multiplication of litigation, especially those that result in "an unnecessary expenditure of procedural activities and superfluous formalities".