The share of severance pay (TFR) in a divorce is not automatic. It may be owed to the former spouse, but only when precise requirements established by law are met. The most common doubt concerns the 40 percentage: it does not generally mean 40 percent of every sum received at the end of employment, nor 40 percent of the entire treatment built up over a career.
I want to help you distinguish actual severance pay from incentives, bonuses or social security benefits, to understand which years enter into the calculation and what weight is held by divorce maintenance, any potential new marriage and choices regarding the pension fund. These differences are particularly relevant for executives, professionals with non-linear employment relationships and families where assets consist of multiple sources.
When the former spouse has the right to a share of the severance pay
The right arises from the divorce, not from the separation. Article 12-bis of Law no. 898 of 1970 grants a share of the end-of-service allowance to the former spouse against whom the cessation of civil effects or the dissolution of the marriage has been pronounced. The provision also requires that the person claiming the share holds the maintenance allowance provided for by Article 5 of the same law and has not remarried. The current text of the discipline can be consulted in the divorce law, Article 12-bis.
The separation maintenance allowance is not enough on its own. The provision refers to the divorce maintenance allowance: therefore, the measure or agreement recognizing an allowance pursuant to Article 5 after the divorce matters. It is unnecessary to turn this verification into a discussion on the specific function of the allowance. The Court of Cassation has clarified that the severance pay share cannot be denied merely because the divorce maintenance allowance has a predominantly welfare function rather than a compensatory-equalizing one: the decisive factor remains the ownership of the allowance, together with the other statutory requirements. Court of Cassation, Order no. 32910 of 2025.
A new marriage excludes the benefit. If the holder of the maintenance allowance remarries, one of the conditions expressly required by Article 12-bis is missing. This is a different point from the beginning of cohabitation: this guide does not overlap situations that the rule formulates in a different manner. To understand whether the share is owed, first of all, the divorce decision or the effective agreement, the maintenance discipline, and the date on which the other former spouse's employment relationship ends are needed.
The 40 percent concerns only overlapping years
The percentage is 40 percent of the allowance attributable to the marriage. Article 12-bis speaks of forty percent of the total allowance referable to the years in which the employment relationship coincided with the marriage. The legal formula, therefore, is: 40 percent of the portion of the allowance accrued during the period in which marriage and employment relationship coexist over time. It is incorrect to start from the total disbursed amount and always apply 40 percent without first isolating the useful period.
The years before the marriage remain out of the calculation. If a person works for many years before getting married and receives the severance pay upon retirement or termination of the relationship, the duration prior to the wedding does not enter into the base provided by the rule. Similarly, when the employment relationship continues beyond the divorce, it is also necessary to distinguish the portion accrued after the end of the marriage. Personal separation, on the other hand, does not dissolve the marital bond: it must not be confused with divorce when reconstructing dates.
The calculation requires consistent data, not a rough estimate. The dates of hiring, marriage, divorce, and termination of the relationship are needed, alongside the statement describing the disbursed items. In relationships with changes in job classification, periods of leave, company transfers, advance payments, or additional allowances, the mere number of years does not always give a reliable answer. The point is not to automatically multiply a final amount: it is to attribute to marital life only the part that the law considers relevant.
An example for guidance only
The 40 percent intervenes after the delimitation of the base. Imagine an employment relationship that began before the wedding and ended after the divorce. The portion accrued in periods outside the marriage does not contribute to the former spouse's share. If, instead, the entire employment relationship coincides with the marriage, the starting base may include the entire allowance that has the nature of severance pay or an equivalent allowance. The example serves to understand the criterion, not to replace the reading of individual disbursement items.
Which sums are included and which remain excluded
Not every end-of-employment payment is a severance pay share. Upon the termination of employment, severance pay, substitute indemnities, bonuses, settlement sums, premiums, or exit incentives may be paid. The label used on the payslip or in the agreement is not sufficient: the function of the item and its link with the duration and amount of the relationship's remuneration matter. This distinction avoids confusing a complex liquidation with the allowance referred to in Article 12-bis.
The exit incentive is excluded from the share. The Joint Sessions of the Court of Cassation, with ruling no. 6229 of March 7, 2024, specified that indemnities accrued upon termination and determined in proportion to the duration of the relationship and remuneration fall within the perimeter of Article 12-bis; whereas they excluded the exit incentive agreed upon to settle an early resolution. The principle is illustrated in the detail of the Joint Sessions ruling no. 6229/2024.
A settlement must be read by items. An exit agreement may contain both severance pay and additional sums. It is not prudent to subtract or include the entire amount in bulk simply because it is disbursed at the same time. If the document separates the end-of-service allowance from the incentive, from the waiver of claims, or from other considerations, this separation directly affects the base from which to calculate the former spouse's potential share. Even a sum denominated differently may require attention if it is parameterized to the relationship and remuneration.
Executives, professionals, and pension funds: why job classification does not decide everything
Being an executive neither eliminates nor broadens the right on its own. An executive may accrue significant severance pay and, upon termination of the relationship, receive multiple contractual or agreed-upon items. The rule of Article 12-bis remains the same: it is necessary to identify the end-of-service allowance and delimit the years coinciding with the marriage. Precisely in more articulated exit packages, the distinction between severance pay and exit incentive assumes relevance, which cannot be treated as a single asset item.
For the independent professional, there is no automatism. The fact that a person exercises a profession is not enough, on its own, to give rise to or exclude the share. If there is also an employment relationship with an end-of-service treatment, Article 12-bis can come into play within the limits set forth. If, on the other hand, professional fees, assignment termination indemnities, or sums provided by independent relationships are discussed, it is first necessary to establish the legal nature of the emolument: not every end-of-employment income coincides with the severance pay governed by the divorce rule.
Contribution to the pension fund changes the path. The Court of Cassation stated in 2025 that Article 12-bis does not apply to severance pay already accrued and contributed to complementary pension schemes during the relationship, prior to retirement and prior to the divorce petition. Fund benefits possibly perceived later do not become a severance pay share for this reason, but they can affect, if other prerequisites are met, the quantification or modification of the divorce maintenance allowance. The principle is reported in the review of the Court of Cassation relating to ruling no. 20132/2025.
Perception of severance pay, economic agreements, and tax profiles
The date on which severance pay is received also matters. The share may concern an indemnity received after the divorce application, even before judgment, provided the proceedings conclude with an award of divorce maintenance and the other requirements are met. Sums already received before the application, during married life or separation alone, do not automatically fall within this entitlement. Final payments, advances and pension fund contributions must be distinguished, as explained in Court of Cassation Judgment no. 20132 of 2025.
The advance payment must not be added without verifications. A severance pay advance collected during the relationship has a different history from the final liquidation. The date of collection, its cause, and the period to which the amount refers can modify the reasoning. The same applies to sums paid into a pension fund: it is incorrect to treat them as if they were still severance pay disbursed at the time of termination, ignoring the choices made before the divorce petition.
The separate taxation of severance pay does not independently resolve the tax treatment of the share. Article 17 of the Consolidated Income Tax Act (TUIR) includes end-of-service treatment among income subject to separate taxation, as resulting from the text of Article 17 of Presidential Decree no. 917 of 1986. However, this data does not authorize the automatic deduction of which withholding tax should burden, in any case, the share recognized to the former spouse. Gross or net base, withholdings already made, and payment methods require specific tax verification before fixing amounts in an agreement or a petition.
Two paths to distinguish before making a request
An agreement can regulate the share in an express manner. Former spouses can address the issue when defining the economic consequences of the divorce, precisely indicating which sum concerns the severance pay, how it is calculated, and when it must be paid. A clear understanding must distinguish the share provided by law from other asset allocations, so as to avoid a generic formula producing doubts precisely when the liquidation becomes enforceable.
Lump-sum settlements deserve special attention. Article 5 of the divorce law allows, if the court deems it fair, the payment of maintenance in a single solution; after such allocation, no further economic claims can be proposed. For this reason, an agreement or measure providing for a lump-sum solution must not be read as a normal periodic maintenance allowance: its formulation can also decisively affect the possibility of subsequently requesting sums linked to severance pay.
Useful documents serve to answer precise questions. The judgment or divorce agreement clarifies whether a maintenance allowance exists and with what structure; employer documentation identifies the disbursed sums; the dates of marriage, divorce, and the employment relationship delimit the relevant period. If you need to address a request or an agreement, we can start from these elements to separate what the law recognizes from the part that instead requires a different property negotiation.
Frequently asked questions
Can I claim the severance pay share if I only receive the separation maintenance allowance?
No, the separation maintenance allowance is not the required condition. Article 12-bis requires the ownership of the divorce maintenance allowance pursuant to Article 5 of Law no. 898 of 1970. It is therefore necessary that a divorce has taken place and that the relative measure or agreement recognizes the allowance. The concrete measure of the allowance does not change the 40 percent criterion on its own.
Is the 40 percent calculated on the entire severance pay received by the former spouse?
No, it is calculated on the portion referable to the years of marriage. Before applying the percentage, it is necessary to identify the period in which the employment relationship and the marriage coincided. The years worked before the wedding or after the divorce do not enter into the base. Any sums that do not constitute severance pay or equivalent allowances must also be separated.
Is the share owed even if the divorce maintenance allowance is for welfare purposes?
Yes, the welfare function does not exclude the right on its own. The Court of Cassation has specified that the provision leverages the ownership of the divorce maintenance allowance and does not allow denying the share solely based on the function attributed to the allowance. The other requirements remain indispensable, including the failure to remarry.
Must the exit incentive be divided with the former spouse?
No, it does not fall within the share of Article 12-bis. The Joint Sessions distinguished the exit incentive from severance pay and indemnities determined in proportion to the duration of the relationship and remuneration. If an exit agreement contains multiple items, one must therefore separately read amounts, causes, and calculation criteria, without applying 40 percent to the entire package.
Does severance pay paid into a pension fund remain subject to 40 percent?
Not necessarily: the contribution can exclude the direct application of Article 12-bis. The Court of Cassation excluded the share when already accrued severance pay was contributed to complementary pension schemes during the relationship, prior to retirement and prior to the divorce petition. However, fund benefits can be relevant, in the presence of requirements, to discuss divorce maintenance.
Essential references
The starting rule is Article 12-bis of Law no. 898 of 1970. For sums included or excluded from the share, Joint Sessions ruling no. 6229/2024 on exit incentives is also relevant. For severance pay destined for complementary pension schemes, the useful reference is ruling no. 20132/2025. If you need to define an agreement or address a liquidation that has already taken place, you can contact me to examine the relationship between divorce maintenance, relevant dates, and individual payment items.