The Right to a Share of Severance Pay and the Uncertainties of Changing Jobs

The end of a marriage brings with it numerous financial matters, among which the division of Severance Pay (Trattamento di Fine Rapporto - TFR) often represents one of the most complex and contentious issues. Many clients turn to our firm worried about a specific situation: what happens if the ex-spouse changes jobs, is laid off, or resigns, and decides to transfer their pension position or cash in their severance pay? The fear that the right to the due share may vanish during the transition between employers, or upon transfer to a private pension fund, is well-founded and requires immediate legal attention. Understanding the protective mechanisms during these transitional phases is crucial to avoid losing an economic benefit sanctioned by law.

The Regulatory Framework: Article 12-bis of the Divorce Law

Italian law, through Article 12-bis of Law no. 898/1970, clearly establishes that a divorced spouse is entitled to a percentage of the severance pay received by the other spouse, even if it accrues after the divorce decree. However, this right is neither automatic nor unconditional. To claim this entitlement, the applicant must be the recipient of a divorce alimony, must not have remarried, and the severance pay must relate to a period of employment that, at least in part, coincides with the marriage. The share due is equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage.

The situation becomes complicated when a job change occurs. In this scenario, the right to receive severance pay technically accrues to the employee. If the ex-spouse decides not to cash in the sum but to transfer it to a pension fund or to the new employer, the other spouse's right to a share does not extinguish, but the method of accessing the asset changes. Case law has clarified that the right arises when the severance pay becomes payable; therefore, the voluntary transfer of funds cannot prejudice the ex-spouse's right to obtain their portion.

The Law Firm Bianucci's Approach to Credit Protection

As a lawyer specializing in family law in Milan, Avv. Marco Bianucci addresses these situations with a pragmatic and timely approach, aware that in property law, speed of action is often synonymous with guarantee. When an ex-spouse changes employment, the risk of concealment or dissipation of funds is high. The firm's strategy involves first an in-depth analysis of the counterparty's employment situation, utilizing legal tools for access to documents and pension information.

Avv. Marco Bianucci does not limit himself to calculating the abstract share but works to secure the funds before they are dispersed. If the severance pay is liquidated, action is taken for the immediate recovery of the 40% share. If, however, the sums are contributed to a pension fund or transferred, the firm intervenes by notifying the credit right to the fund managers or new employers, creating a lien that protects the client. The goal is to transform a theoretical right into concrete liquidity, managing communications with counterparties firmly and professionally to avoid lengthy legal disputes where possible.

Frequently Asked Questions

Am I entitled to severance pay if my ex-husband voluntarily resigned?

Yes, the reason for the termination of the employment relationship is irrelevant to the right to a share of severance pay. Whether it is a dismissal, resignation, or retirement, if you are the recipient of a divorce alimony and have not remarried, you are entitled to 40% of the severance pay accrued for the years coinciding with the marriage.

What happens if my ex-spouse transfers their severance pay to a supplementary pension fund?

The transfer of severance pay to a pension fund does not cancel your right. However, it makes collection more complex because the funds are not immediately paid out to the employee. In this case, as a divorce lawyer, it is necessary to intervene to ascertain the share accrued up to the time of transfer and to secure it or request partial liquidation according to the rules of the specific fund.

How do I know if my ex has changed jobs and cashed in their severance pay?

Often, the ex-spouse does not communicate these changes. It is possible, through a lawyer, to request access to databases or to file a petition with the Court to order the employer or pension institution to produce documentation relating to the employment situation and accrued severance pay.

Does the 40% calculation include the period of legal separation?

Yes, the calculation of the years to which the 40% percentage applies includes the period of legal marriage until the divorce decree becomes final. However, recent case law tends to calculate the share up to the time of the cessation of cohabitation or separation, depending on the interpretation of the competent Court; therefore, a specific case analysis is essential.

Request a Consultation in Milan

The management of severance pay and pension funds in divorce proceedings requires technical expertise and promptness, especially in a dynamic city like Milan where job changes are frequent. If you fear that your ex-spouse's job transfer may jeopardize your financial rights, do not wait any longer. Contact Avv. Marco Bianucci at the firm located at Via Alberto da Giussano, 26, to evaluate your situation and implement the necessary legal protections.