If your ex-spouse does not work by choice, refuses a job, or resigns, it is natural to wonder whether they should continue to receive maintenance payments. The answer is not automatic: the lack of a salary does not always coincide with the impossibility of self-support, but neither is it enough to state that a person "could work" to exclude every right.
I want to help you distinguish between situations that only seem identical at first glance. We will examine what matters between separation and divorce, how a choice not to work is assessed, why earning capacity is not an imaginary salary, and when a subsequent change may justify modifying an already established allowance.
Separation and divorce: the allowance does not always serve the same function
First of all, it is necessary to understand whether we are talking about maintenance payments in separation or the divorce allowance following the dissolution or cessation of the civil effects of marriage. Both measures concern both ex-spouses, but they have prerequisites and purposes that do not completely coincide. Confusing them often leads to hasty conclusions.
In separation, Article 156 of the Civil Code recognizes maintenance for the spouse to whom the separation is not attributable and who lacks adequate personal income. The judge also considers the circumstances and income of the other spouse. The current text of the Civil Code places this rule among the patrimonial effects of separation.
With divorce, however, Article 5 of Law no. 898 of 1970 requires that the ex-spouse lacks adequate means or cannot obtain them for objective reasons. The provision also indicates that the conditions of the parties, income, personal and economic contribution to the family and the formation of assets, as well as the duration of the marriage, are relevant. You can read the regulatory text referred to in Article 5 of the divorce law.
This distinction affects the problem of missed work. It is not enough to compare two payslips or observe that one of the two lacks a job. It is necessary to understand whether the absence of income stems from a freely practicable choice, real health or age limits, still relevant family duties, the labor market, and, above all, the economic history built during the marriage.
Not working voluntarily does not automatically mean losing the allowance
A resignation or a refusal to work are important facts, but they do not alone result in the revocation of the allowance. The judge must ascertain why the ex-spouse is not working, what activity they performed in the past, what skills they retain, and whether there are concrete opportunities to obtain income. A choice made many years earlier may have different consequences than a sudden waiver of an adequate and current job.
Talking about self-responsibility means that, after the end of the relationship, each person must take action to reasonably provide for themselves. It does not mean demanding just any job, incompatible with health, actual preparation, or objective market conditions. At the same time, it does not allow turning the allowance into a permanent replacement for income that the person can realistically achieve without verifiable obstructive reasons.
The refusal must concern a concrete opportunity
Saying that the ex-spouse has refused to work requires something more than the generic idea that they are of working age. Concrete employment opportunity matters: a proposal received, an activity compatible with qualifications and experience, an accessible sector in the place where they live, or job search initiatives that show a real willingness to become economically autonomous.
An occasional, distant offer incompatible with documented health problems does not carry the same weight as a stable job, consistent with the professional path and refused without a recognizable reason. Likewise, merely registering with a course or an employment center does not resolve the issue if it is not linked to an effective income opportunity. The decisive fact is the real sustainability of the working alternative.
Earning capacity: it is not a presumed gain
Earning capacity is not an invented figure to reduce or deny the allowance. It is the assessment of the concrete ability to produce income, derived from elements such as training, activities performed, professional continuity, age, health conditions, time elapsed since the last job, and realistic opportunities. For this reason, there is no rule according to which someone holding a diploma, a degree, or previous experience must be treated as if they were still earning their past salary.
The Court of Cassation has clarified that the divorce allowance requires an assessment that combines assistance, compensatory, and equalization functions. In particular, it is necessary to compare the economic and patrimonial conditions of the ex-spouses and give relevance to the contribution made to the family and assets, the duration of the marriage, age, and future income prospects. This criterion is illustrated in the press release of the Court of Cassation on the Joint Civil Sections judgment no. 18287 of 2018.
Abstract working capacity does not close the matter. Someone who left a job to take care of the home, children, or family organization may have lost continuity, updating, and professional opportunities. If that choice was shared during married life and allowed the other spouse to increase income or assets, its weight cannot be erased with the single phrase "they can go back to work."
Conversely, the assessment changes if the person retains recent professionalism, has compatible opportunities, and renounces adequate employment without a concrete reason. The judge looks at current facts, not applying a moral penalty to those who do not work. Personal choice can have an impact because it modifies the possibility of procuring one's own means, not because the end of the marriage requires indiscriminately accepting any occupation.
The contribution made to the family may remain relevant
The divorce allowance does not only serve to face immediate need. It can also have a compensatory and equalization function when the economic disparity depends on the couple's choices and the sacrifice of professional or income expectations of one of the spouses, who has contributed appreciably to domestic life or the formation of common or mutual assets.
Within this framework, the correct question is not only: "Why are they not working today?" It is also: "What happened during the marriage?" An interruption of work for a few months, unrelated to family decisions and followed by comparable professional opportunities, is different from abandoning a career lasting years to permanently assume the care of the home or children, while the other spouse consolidated their own economic position.
The duration of the marriage may have an impact, but it does not act as an automatic threshold. A long marriage does not guarantee an allowance; a shorter marriage does not exclude all protection. The link between sacrifice and result counts: it is necessary to understand whether family choices have truly limited the economic autonomy of one spouse and, at the same time, favored the professional or patrimonial path of the other.
Nor should the comparison between assets stop at their formal registration. A property can produce income, be available for personal use, or not be immediately usable for liquidity needs. Likewise, assets belonging to the obligated ex-spouse are not enough on their own to establish the allowance. The economic comparison must be concrete and linked to the function that the allowance can perform in the individual relationship.
Resignations, job refusals, and evidence that change the assessment
Resignations carry different weight depending on their context. If they occur during the marriage as part of a known and shared family choice, they cannot be automatically considered a culpable waiver of autonomy. If instead they arrive after the crisis, without recognizable health, family, or professional reasons, and when suitable employment existed, they can significantly impact the assessment of available or procurable means.
To clarify the matter, the contract and payslips of the last job, the resignation letter, medical documentation if relevant, updated professional qualifications, sent applications, and any job proposals can be useful. Each document must answer a precise question: does it demonstrate a free choice, an objective obstacle, a concrete working opportunity, or the contribution made to the family?
A frequent mistake is using unemployment as an isolated argument. Anyone requesting the revocation of the allowance must focus on elements showing a real change or a concrete capacity for self-sustenance; anyone requesting or defending the allowance must explain why the income is unobtainable despite reasonable commitment or why the gap also depends on past family sacrifices. Labels do not replace facts.
If the allowance is already established, you cannot stop paying unilaterally
A change in employment does not alter the existing provision on its own. If the divorce allowance was ordered by judgment or another effective provision, payment cannot be unilaterally reduced, suspended, or offset because the ex-spouse found a job, refused employment, or resigned. It is necessary to request a revision of the terms.
Article 9 of Law no. 898 of 1970 provides that, after the divorce judgment, the court may review the economic provisions if justified grounds supervene, upon motion of a party. The text can be consulted in Article 9 of the divorce law. The Court of Cassation has also specified that new facts do not automatically change the allowance: they must be examined in the review proceedings.
The timing of the change matters. A fact already known and evaluated in the original provision does not become new simply because a party reads it differently afterward. Instead, employment started after divorce, a subsequent resignation, documented worsening of health, or the actual loss of a source of income may require a new verification, provided they truly impact the economic balance previously considered.
If you must face this choice, it is useful to organize a few essential data: current provision or agreement in force, current income and assets, chronology of the last employment relationship, reasons for resignation or refusal, job search activities carried out, and relevant family circumstances. Chronology avoids misunderstandings, as it allows distinguishing a supervening difficulty from a situation already evaluated by the judge.
Frequently Asked Questions
Can I stop paying if my ex-spouse refuses a job?
No, not unilaterally. The refusal of employment can be an element to request the revision of the allowance, but it does not cancel the provision in force on its own. For divorce, supervening facts must be evaluated by the court in the proceedings provided for modifying conditions.
Do voluntary resignations always mean losing the allowance?
No. It is necessary to understand when and why they were given. Resigning for a shared family choice, with lasting consequences on a career, is different from leaving adequate employment after divorce without objective reasons. The assessment also concerns job opportunities currently available.
Can the judge consider a salary that the ex-spouse does not receive?
They can consider the concrete capacity to produce income, but cannot automatically attribute a hypothetical salary. Training, experience, age, health, time away from work, and effective opportunities serve to assess whether the person can procure their own means with reasonable commitment.
If the ex-spouse finds a job, is the allowance automatically canceled?
No. A new job can justify a request for revision if it significantly modifies the economic conditions previously considered. The judge evaluates income, employment stability, assets, the function of the allowance, and facts that determined any imbalance between the ex-spouses.
Does child maintenance change if a parent chooses not to work?
The allowance for the ex-spouse and the contribution for the children are distinct. A parent's work choice can be relevant in resource allocation, but it does not allow confusing the adult's need with the children's right to receive maintenance, care, upbringing, and education from both parents.