The duty of disclosure in family crisis proceedings

One of the novelties introduced by the Cartabia Reform in court proceedings resulting from the crisis between spouses, cohabitants, and civil unions is the mandatory requirement for each of the parties to file a full disclosure on their income and asset situation as well as a document called a “parenting plan” regarding the standard of living enjoyed by the children while cohabiting with both parents.

What does the new rite provide?

As of March 1, 2023, the new rite in force requires that we “play open cards,” and the behavior of the party who, about their economic conditions, renders inaccurate or incomplete information or makes documentary productions, is evaluated for the decision.

Specifically, Article 473-bis.18 specifies the duty of loyal cooperation of the parties, stating that “The conduct of the party that concerning its economic conditions makes inaccurate or incomplete information or documentary productions is assessable under the second paragraph of Article 116, as well as under the first paragraph of Article 92 and Article 96.”

With this article, the legislature imposes a behavior of procedural loyalty that goes as far as the duty to provide the other party with elements contrary to their interest in compliance with the obligations of mutual protection arising from the marital relationship (Article 29 Const.), intending to protect the rights of the weak spouse and those of minors.

Specifically, the reform has mandated that when filing the first deed, if applications are made for financial aid for a spouse or minor children, in addition to the last three income tax returns, both spouses must file account statements and financial documents for the previous three years relating to accounts in sole and joint names with third parties, in existence or closed in the last three years (this will enable the Court to have knowledge of the periodic balances and to verify all incoming and outgoing transactions recorded on the accounts) as well as documents proving the ownership of the real estate and registered movable property and company shares inclusive of documentation showing how they came into possession of these assets, such as, for example, notarial deeds from which the price paid for the purchase is also shown.

The “parenting plan”

In addition, couples with minor children will have to fill out and file an additional document called the “parenting plan, “-a veritable “snapshot” of the life of the family life-whose purpose is to help the judge decide by adopting at the first hearing the provisional measures of an economic nature and division of time of view, which best meet the interests of the child.

The parenting plan, which is required by Article 473 bis-12, fourth paragraph, of the Civil Code, will have to contain indications about the daily commitments and activities of the children according to the approach that the parents agreed upon during cohabitation: from school to social, sports and recreational activities to regular attendance and vacations … in short, a detailed and precise description of the educational, health and welfare choices that the parents had adopted in the children’s interests before the family crisis.

Specifically, the judge will need to be told where and with whom the child lives at the time the petition is filed in the proceedings, whether other people are living together, and what relationship they have with him, for example, other children of only one of his parents; the school attended, with an indication of the amount of tuition and incidental expenses in the case of enrollment in private institutes or universities, the budgeted costs for any courses abroad, the need for assistance or support during classes, for example, for learning disorders.

On the health front, illnesses suffer receipt of benefits, availability of health policies should be specified. But also sports played, starting when and with the associated disbursements. For the judge to make a more informed decision, they must know the typical day: who is currently caring for the child; whether both parents work, with what hours; and whether there are grandparents, other relatives, or a babysitter to take care of the child when mom and dad are busy away from home or during school vacations and holidays.

Finally, dating and staying with relatives, such as uncles, cousins, and other caregivers, will matter because when “the couple breaks up,” the judge must know which people can support the parents in managing the children.

In addition, the parenting plan will also need to give specifics on the homes the child has had at their disposal-both to the family home and with vacation homes in Italy or abroad-specifying whether the properties are owned, rented (with an indication of the rents, date of stipulation and duration), on loan or held in some other capacity, the surface area and the number of rooms; if each parent has an independent living arrangement, the information should cover both properties, so that appropriate accommodations can be identified. Completing the snapshot of the child’s standard of living are other family activities: customary travel, theater or stadium subscriptions, and membership in recreational, cultural, or sports clubs with associated fees.

These documents will allow the judge to identify and detail within the measures he is called upon to take the most appropriate directions in the interest of the spouse and minors, built “to measure” concerning the past living situation and established habits or allow the Court to “check” the correspondence of the agreements reached to the interest of the weak spouse and minors.

The filing of the disclosure and parenting plan

The obligation to file the disclosure and “parenting plan” is also provided in court proceedings and consensual proceedings. In this case, however, the Court of Milan allows spouses to waive the filing of the disclosure-but, not the “parenting plan”-but the spouses must declare that they have nonetheless seen each other.

The judge can evaluate failure to do so as an argument in evidence. The judge might assume that the reticent party has something to hide from the Court and then order even more stringent investigations, including rejecting their or her claims, deeming them insufficiently proven.

But again. At the outcome of the first appearance hearing, the judge may order the supplementation of the documents filed by the parties and order production orders and investigations on income, assets, and actual standard of living, even against third parties, also making use of the tax police. The situation becomes even more “difficult” when there are minor children: to protect their property interests, the judge may also order means of evidence outside the limits of admissibility provided by the Civil Code, as long as he guarantees the parties’ right to infer contrary evidence.

Therefore, beware of making false information in Court or making inaccurate or partial documentary productions about one’s economic conditions because the reform has introduced the possibility of mortgage registration, of obtaining the seizure of movable and immovable property or credits of the debtor spouse even as a guarantee of the fulfillment of provisional measures, without having to wait years for the final judgment in the proceedings.