The End-of-Mandate Severance Pay in the Context of Divorce in Milan

When facing the end of a marriage, managing financial aspects often represents the most delicate and complex phase, especially in a dynamic and entrepreneurial city like Milan. While for employees, the issue of the TFR (Trattamento di Fine Rapporto - severance pay) share is now peacefully regulated, the situation becomes more intricate when one of the spouses holds the position of company director and is entitled to TFM (Trattamento di Fine Mandato - end-of-mandate severance pay). As an expert family lawyer in Milan, Avv. Marco Bianucci frequently finds himself clarifying to his clients whether and how this specific indemnity should be divided between ex-spouses. The issue is not merely theoretical but significantly impacts post-marital economic balances, requiring in-depth analysis not only of the Civil Code provisions but also of the most recent case law, which has, in certain aspects, equated the protections provided for subordinate employment with those for corporate directorships.

The complexity arises from the very nature of TFM, which, unlike TFR, is not mandatory by law but is established on a statutory or shareholder meeting basis. Many spouses are unaware of the existence of this right or struggle to quantify it correctly. This is where the intervention of a professional becomes crucial: understanding whether the indemnity received or to be received by the ex-spouse director falls within the scope of attachable or divisible assets is fundamental to ensuring complete protection of one's rights. Avv. Marco Bianucci, operating in the economic heart of Milan, has gained consolidated experience in managing divorces involving corporate assets and managerial figures, offering targeted advice to bring to light and enhance every economic component relevant to the definition of financial relations.

The Regulatory Framework and the Equivalence between TFR and TFM

Article 12-bis of the Divorce Law (L. 898/1970) establishes the right of the divorced spouse, who is entitled to a divorce allowance and has not remarried, to receive a percentage of the severance pay received by the other spouse. This provision, originally conceived mainly for subordinate employment, has over time raised interpretative doubts regarding its applicability to other forms of indemnity, such as the end-of-mandate severance pay for directors. However, jurisprudential evolution, guided by rulings of the Court of Cassation, has progressively extended the scope of application of this provision. The principle has been consolidated that the law's rationale is to implement post-marital solidarity by recognizing the contribution made by the spouse to the formation of the other's family and professional assets during the years of marriage.

From a legal standpoint, for TFM to be subject to the 40% share provided for the divorced spouse, it is necessary for this indemnity to have a deferred remuneration nature and not a compensatory one. In simpler terms, if the TFM is paid as compensation accumulated over time for management activities performed, it is comparable to TFR. This step is fundamental and requires a technical analysis of the company resolution that established the TFM. Avv. Marco Bianucci, an expert family lawyer, pays particular attention to this phase of legal qualification, as only by demonstrating the remuneration nature of the indemnity can the request for a share be legitimately advanced. It is essential to emphasize that the right arises at the moment the indemnity is actually received by the director, even if this occurs years after the divorce decree, provided that the subjective requirements have not ceased to exist.

The Indispensable Requirements to Obtain the Share

It is not sufficient for the ex-spouse to be a company director and receive TFM to automatically trigger the right to a share. The law imposes strict conditions that must coexist. The first and most important requirement is entitlement to a divorce allowance. If the court has not recognized a periodic allowance for maintenance to the ex-spouse, the fundamental prerequisite for requesting the TFM share is missing. This link is inseparable: the share of the indemnity is seen by the legislator as a sort of extension or integration of the economic solidarity already established with the divorce allowance. Therefore, in cases where the divorce concludes with a one-off settlement or without provision for an allowance, any claim on future TFM lapses.

Another decisive requirement is the marital status of the applicant: the spouse requesting the share must not have remarried. Remarriage, in fact, definitively severs any economic solidarity with the previous spouse, causing the loss of the right to both the divorce allowance and shares of severance pay or mandate indemnity. Furthermore, the calculation of the due share follows a precise temporal criterion. The law provides for 40% of the total indemnity attributable to the years in which the employment relationship (or directorship) coincided with the marriage. This calculation can be complex when the mandate began before the marriage or continued after the separation, requiring a pro-rata temporis mathematical operation that must be performed with extreme precision to avoid disputes.

The Bianucci Law Firm's Approach to Managing Complex Assets

Addressing the division of complex assets such as end-of-mandate severance pay requires a strategy that goes beyond the simple application of mathematical formulas. The approach of Avv. Marco Bianucci, an expert family lawyer in Milan, is distinguished by meticulous documentary analysis and a holistic vision. When assisting the requesting spouse, the activity focuses on gathering evidence: company registry searches, financial statements, appointment resolutions, and bylaws are examined to ascertain the existence and extent of the TFM, often