Facing the end of a marriage involves not only significant emotional burden but also the need to navigate complex financial matters. One of the issues that raises the most questions concerns the fate of the Severance Pay (Trattamento di Fine Rapporto - TFR) and whether any agreements made before the wedding can influence its distribution. As an expert lawyer in family law in Milan, Avv. Marco Bianucci fully understands how uncertainty about the financial future can worry those going through a divorce, especially when private agreements or prior arrangements seem to have already decided the fate of assets.

The Right to a Share of Severance Pay in Divorce: Italian Law

Generally, Italian law provides specific protection for the economically weaker spouse. Article 12-bis of the Divorce Law (L. 898/1970) establishes that a divorced spouse, if entitled to a divorce allowance and has not remarried, has the right to a percentage of the severance pay received by the other spouse, even if it accrues after the divorce decree. The share due is 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage.

However, the situation becomes considerably more complicated when the parties have signed a prenuptial agreement that provides for the waiver of these rights or a different distribution of assets. In Italy, the validity of such agreements is the subject of heated legal debate and requires in-depth technical analysis.

The Validity of Prenuptial Agreements in Italy

Unlike in Common Law countries (such as the USA or the UK), prenuptial agreements in Italy that regulate future financial arrangements in anticipation of a hypothetical divorce have historically been considered void due to an illicit cause. Traditional case law holds that rights arising from marriage, including the share of severance pay, are not disposable before marital crisis has actually occurred.

However, the scenario is evolving. If the agreement was made abroad between spouses of different nationalities, or if it has particular characteristics that configure it not as a preemptive waiver of rights but as a specific property settlement, there might be room for a different interpretation. This is where the role of a divorce lawyer becomes crucial: it's not about applying an automatic rule, but about verifying whether that specific document can withstand scrutiny by an Italian judge or if it needs to be challenged to ensure the application of Italian law on severance pay.

The Approach of the Bianucci Law Firm

At the Bianucci Law Firm in via Alberto da Giussano in Milan, each case is handled with a tailored strategy. Avv. Marco Bianucci, an expert lawyer in matrimonial law, does not limit himself to calculating the due shares but conducts a rigorous preliminary analysis of any private agreement existing between the spouses.

The approach is divided into three phases:

Firstly, the formal and substantive validity of the prenuptial agreement is examined in light of the most recent Supreme Court rulings. The goal is to understand if the agreement is void (thus allowing the client to claim 40% of the severance pay) or if there are grounds for its validity.

Subsequently, the exact calculation of the accrued severance pay and the due share is carried out, considering complex variables such as advances already received or periods of legal separation.

Finally, Avv. Marco Bianucci favors firm but constructive negotiation. If the prenuptial agreement proves ineffective, efforts are made to obtain full recognition of the client's rights; if, on the other hand, it presents elements of validity (for example, in international contexts), a defense strategy is developed to mitigate losses or find alternative compensation.

Frequently Asked Questions

Is a prenuptial agreement in which I waive severance pay valid?

In Italy, prevailing case law considers preemptive agreements that limit economic rights arising from divorce, including the share of severance pay, to be void if entered into before marriage. However, agreements signed during separation or divorce proceedings are valid. Each document must be analyzed individually.

How is the share of severance pay due to the ex-spouse calculated?

The share corresponds to 40% of the total severance pay, calculated only on the years in which the employment relationship coincided with the marriage (up to the divorce decree). It is necessary for the claimant to be entitled to a divorce allowance and not to have remarried.

What happens if my ex spent the severance pay before the divorce?

The right to the share arises at the time the severance pay is received. If the ex-spouse has collected and dissipated the sum, the credit right remains. It will be the lawyer's task to act for the recovery of the sums owed, potentially by seizing other assets.

If I remarry, do I lose my right to my ex-spouse's share of severance pay?

Yes, entering into a new marriage is one of the reasons that cause the loss of the right to receive the ex-spouse's share of severance pay, just as it causes the loss of the right to a divorce allowance.

Protect Your Financial Rights

The management of severance pay and the evaluation of any prenuptial agreements require specific and up-to-date technical expertise. Do not let a document signed in the past prejudice your financial future without first consulting an expert. Contact Avv. Marco Bianucci for an in-depth evaluation of your case. The firm receives clients in Milan at via Alberto da Giussano, 26, and is ready to assist you with professionalism and discretion.