The termination of an employment relationship entails the settlement of various sums, including the Severance Pay (TFR) and, in specific cases, the payment in lieu of notice. When these sums accrue in a context where the employee is divorced, a complex conflict often arises between the rights of the ex-spouse and those of potential heirs or the employee themselves. As an experienced family law attorney in Milan, I frequently find myself clarifying whether the payment in lieu of notice also needs to be divided according to the percentages stipulated by law for TFR.

Many clients wonder if this specific indemnity, which has a compensatory nature for the lack of timely notification of dismissal or resignation, is included in the calculation of the share due to the ex-spouse. The answer is not straightforward and requires a deep understanding of the most recent case law to ensure that each party receives what is legally due to them.

The Legal Nature of the Indemnity and the Ex-Spouse's Share

The Divorce Law (Law 898/1970, art. 12-bis) establishes that a divorced spouse, if entitled to a divorce allowance and 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 is equal to 40% of the total indemnity, referring to the years in which the employment relationship coincided with the marriage.

The crucial point concerns the extension of this provision to the payment in lieu of notice. The case law of the Court of Cassation has clarified that this indemnity, despite having a different function from TFR in the strict sense, is part of the indemnities due upon termination of the employment relationship. Therefore, it is to be included in the calculation for determining the share due to the ex-spouse. This principle is fundamental to prevent a substantial portion of the settlement from being excluded from the division, economically disadvantaging the economically weaker spouse.

The Bianucci Law Firm's Approach to Division

Addressing the division of employment indemnities requires mathematical precision and legal expertise. The approach of Avv. Marco Bianucci, a divorce lawyer in Milan with extensive experience in managing the financial consequences of family crises, is based on a rigorous analysis of every item in the final payslip.

In my office on Via Alberto da Giussano, we analyze the pension and employment situation to identify all sums that fall within the scope of Article 12-bis. We do not limit ourselves to calculating the basic TFR but include, where applicable, the payment in lieu of notice and other ancillary indemnities. When the employee has passed away and heirs are involved, the situation becomes even more complicated: in this case, my role is to mediate or act judicially to ensure that the share due to the ex-spouse is deducted from the inheritance or claimed directly from the paying entity, protecting my client's rights against any illegitimate claims by the heirs.

Frequently Asked Questions

Does the ex-spouse always have a right to a share of the payment in lieu of notice?

Not automatically. The right arises only if the ex-spouse is entitled to a periodic divorce allowance and has not remarried. Furthermore, the indemnity must have accrued at the time of or after the filing of the divorce petition.

How is the percentage due to the ex-spouse calculated?

The law provides for a share equal to 40% of the total indemnity, but only for the portion attributable to the years in which the employment relationship coincided with the marriage. A precise proportional calculation is necessary to determine the exact amount.

What happens if the employee dies before paying the share to the ex-spouse?

In the event of the employee's death, the ex-spouse's right to a share of the TFR and payment in lieu of notice does not expire. The ex-spouse can assert their right against the heirs or, in some cases, participate in the division of the indemnity directly with other entitled survivors.

Should the payment in lieu of notice be requested from the employer or the ex-spouse?

If the sums have already been paid to the employee, the request should be addressed to them (or their heirs). If the sums are still with the company, it is possible to intervene to block the due share, but the procedure requires the assistance of an experienced family law attorney to properly serve the necessary notices.

Protect Your Financial Rights

The correct division of severance indemnities is often subject to litigation and calculation errors that can be costly. If you have doubts about your rights regarding your ex-spouse's TFR or payment in lieu of notice, it is essential to act with the support of a competent professional.

Contact Avv. Marco Bianucci for an assessment of your case. The Bianucci Law Firm in Milan is at your disposal to analyze your situation and ensure you the best possible legal protection.