Judicial divorce concerns those who wish to terminate their marriage but cannot reach a complete agreement with the other spouse. Disagreement may involve spousal maintenance, child support, daily organization, the family home, or an assessment of each person's financial resources. In Milan, as in the rest of Italy, the place where the marriage was celebrated does not solely determine which court must handle the case.
I want to help you distinguish what the judge must decide from what can still be agreed upon during the proceedings. We will see when a divorce can be requested, what happens after the petition, why documents and financial facts matter so much, and what alternatives remain open if court confrontation becomes necessary.
When can you request a judicial divorce
Disagreement does not prevent divorce. If the conditions established by law are met, one of the spouses can file the application even without the signature or consent of the other. The procedure is judicial because the court must verify the conditions for the dissolution or the cessation of the civil effects of the marriage and decide on the remaining contested issues. For a civil marriage, it is referred to as dissolution; for a transcribed religious marriage, it is referred to as cessation of civil effects. The basic rules are set forth in Law no. 898 of 1970.
Separation is usually the preceding step. In the most frequent situation, divorce follows a personal separation that has already produced its legal effects. Law no. 55 of 2015 set the term of twelve months from the appearance of the spouses in the judicial separation proceedings and six months in consensual separation, even if proceedings that began as contested end consensually. However, this term does not replace the other requirements needed to obtain a divorce: clarifying the nature and status of the separation avoids confusing the passage of time with the immediate possibility of defining every claim. The text of the reform can be consulted in Law no. 55 of 2015.
Separation and divorce are not the same case. Separation suspends certain marital duties and can regulate children, the home, and financial contributions; divorce, on the other hand, modifies civil status and governs the effects subsequent to the end of the marriage. For this reason, the conditions set in the separation are an important starting point, but do not automatically constitute the final decision on the divorce. Incomes, the needs of the children, the availability of the home, and financial relations may have changed in the meantime.
Which court decides and how the proceedings begin
Jurisdiction depends primarily on minor children. When it is necessary to adopt measures concerning them, the court of the place of their habitual residence has jurisdiction. In the absence of minor children, the rule indicated by Article 473-bis.47 of the Code of Civil Procedure points to the court of the place of residence or domicile of the respondent, with specific rules if the respondent is untraceable or resides abroad. Milan is therefore competent only if the statutory criteria lead to the Court of Milan, not because the spouses lived there in the past or celebrated their marriage there. The provisions currently applicable are reported in Legislative Decree no. 164 of 2024.
The case begins with a petition, not a simple generic request. The petition must set out the relevant facts, formulate the claims, and attach the required documents. The recipient must be able to defend themselves on specific points: for example, child support, assignment of the home, allowance for the ex-spouse, or allocation of an expense. The code also requires that, for financial claims, documentation regarding income and financial status be filed; among the indicated documents are tax returns for the last three years. This serves to base a decision on verifiable data, rather than on conflicting statements. The content of the petition and the documents are regulated by Article 473-bis.12 of the Code of Civil Procedure.
The first hearing does not necessarily close the case. The parties appear in person barring serious and proven reasons, the judge hears the respective positions and attempts conciliation. If an agreement is not reached, they may adopt temporary and urgent measures in the interest of the parties and the children, within the limits of the claims formulated. These are measures intended to regulate the duration of the trial: they may concern, for example, financial contributions or the organization of the children's lives, without automatically anticipating every final evaluation.
Children, housing, and daily expenses
Children are not an accessory issue in divorce. When there are minor children, or adult children who are not financially self-sufficient, the judgment must define how important decisions will be made, where they will predominantly live, how they will spend time with each parent, and to what extent each will contribute to their needs. The confrontation does not concern only a monthly sum; the concrete organization of school, health, activities, holidays, and communications between parents also matters.
Joint custody does not coincide with a mathematical division of time. It generally means that both parents remain involved in decisions of major interest for the children. However, the times of permanence may differ if required by the age of the children, the distance between homes, genuinely sustainable schedules, or specific needs. A useful calendar must be workable: a prediction that is too rigid or far from daily life risks generating new conflicts rather than reducing them.
Family home, ownership, and mortgage are separate levels. Determining who will use the home during or after the divorce does not automatically transfer ownership of the property. Likewise, the presence of a mortgage requires distinguishing the relationship between the spouses from that with the bank: an agreement or order between the parties does not alone modify the financing contract. The answer changes if the home belongs to only one, is jointly owned, leased, or granted under loan for use by a family member.
Expenses must be described with precision. A periodic contribution can cover the ordinary needs of the children, while certain extraordinary expenses require separate regulation. It is not enough to call an expense "extraordinary": one must understand whether it is foreseeable, necessary, documented, and whether it requires prior sharing. Defining these boundaries in the judgment or in an agreement reduces the risk that every health, school, or sports expense becomes a new reason for conflict.
Spousal allowance and assets: what the judge evaluates
The spousal allowance is not automatic. Article 5 of Law no. 898 of 1970 provides that the court considers the conditions of the spouses, the reasons for the decision, the personal and financial contribution given to the family and to the formation of the common estate, the incomes of both, and the duration of the marriage. The law links the allowance to the lack of adequate means or the objective impossibility of obtaining them. Therefore, it is not sufficient for one spouse to earn more than the other, nor does the income gap exhaust the examination of the situation. The regulatory reference is reported in Legislative Decree no. 164 of 2024, with the text of Article 5.
Assets must be read together with their actual availability. A property, a corporate share, savings, investments, debts, and the capacity to produce income can affect the situation differently. An asset that is not immediately usable for daily expenses does not necessarily equate to available cash; conversely, declared income may not alone represent all relevant resources. Documentation must make it possible to understand ownership, returns, liabilities, and necessary expenses, without confusing the personal estate of each with what the spouses possess together.
Divorce does not automatically divide every asset. The cessation of the marriage and the division of common assets are issues connected only in certain cases. If properties or jointly owned accounts exist, it must be established whether there is an agreement on management, possible sale, or division; if the assets are personal, the financial claim requires different reasoning. Avoiding overlaps is essential: an allowance, the use of the home, and the division of an asset have different functions and prerequisites.
Provisional measures, subsequent agreements, and modifications
Urgent measures serve to provide a rule in the meantime. If conciliation fails, the judge may adopt temporary and urgent orders for the parties and the children by ordinance. When ordering a financial contribution, the judge also determines its effective date and may make it retroact to the date of the application. These measures can be modified or revoked in the presence of subsequent facts or new investigative assessments: they are not a reason to refrain from immediately setting out urgent needs clearly. The discipline is contained in Articles 473-bis.22 and 473-bis.23 of the reformed Code of Civil Procedure.
An understanding can mature even after the start of litigation. The fact of having filed a petition does not render it useless to seek an agreement on some or all points. However, the agreement must truly address the open issues and not be limited to postponing essential decisions. When it involves children, the solution must be consistent with their interests; when it concerns contributions or assets, it must distinguish what is immediately enforceable from what requires further acts, such as a sale or bank consent.
Definitve conditions can be reviewed if relevant facts change. After the divorce judgment, the law allows for requesting the revision of provisions regarding child custody and contributions when justified motives supervene. A stable and demonstrable modification of income, the needs of the children, or housing conditions can be relevant; not every normal variation of daily life is automatically so. The provision is in Article 9 of the divorce law, recalled in the current text of the Divorce Law.
What to clarify before filing the petition
Initial information guides the claims to be formulated. It is useful to gather separation orders, data on the residence and daily life of the children, tax returns, and essential documents on incomes, accounts, properties, financing, and relevant expenses. It is not necessary to turn this phase into an indiscriminate search for documents: above all, elements are needed that allow distinguishing what is certain, what is contested, and what requires an urgent measure.
Priority changes from family to family. If money is lacking for the immediate needs of the children, the financial issue may require attention from the start. If the main problem is the use of the home, housing, ownership, and financing must be separated. If, instead, the conflict concerns the allowance, a complete representation of resources and contributions given to family life becomes decisive. Focusing on the concrete point prevents the judgment from dispersing into unhelpful disputes.
Frequently Asked Questions
Can I request a divorce if the other spouse does not agree?
Yes, consent is not essential. If the conditions provided by law exist, you can propose a judicial divorce and ask the court to decide the contested issues. The absence of agreement turns the path into a trial, but does not prevent requesting the dissolution or cessation of the civil effects of the marriage.
How long must I wait after a judicial separation?
The ordinary term is twelve months. Law no. 55 of 2015 makes it run from the appearance of the spouses in the judicial separation proceedings. In consensual separation, the term is instead six months. The elapsed time must be read together with the legal status of the separation and the conditions required for the divorce application.
Can the judge decide immediately on child maintenance?
They can adopt temporary and urgent measures. If agreement fails, the judge can regulate financial contributions, the organization of the children, and other urgent matters in the meantime within the limits of the proposed claims. These measures do not eliminate the subsequent examination of the case, but prevent the family from remaining without rules during the trial.
Is the family home automatically assigned to the parent with whom the children live?
No, the concrete case must be distinguished. The presence of children is certainly central, but their housing needs and the situation of the property must also be considered. The assignment of the use of the home does not transfer ownership and does not alone modify an existing mortgage or lease contract.
Can I ask to change conditions after the divorce?
Yes, if justified motives supervene. A relevant and demonstrable change in economic resources, the needs of the children, or living conditions can justify a request for revision. However, it is not enough to re-propose the same disagreement already decided: one must indicate what has changed after the judgment and why that fact affects the established conditions.
A useful comparison before decisions
A judicial divorce requires orderly choices, not hasty decisions. Understanding which claims are truly necessary, which documents support them, and which aspects can still be regulated with an agreement helps protect children, housing, and financial resources. If you must face litigation in Milan, you can contact me to frame the relevant facts and evaluate steps consistent with your situation.