The Right to a Share of Severance Pay in Divorce Proceedings

The end of a marriage brings not only the emotional burden of separation but also complex financial matters that require careful legal analysis. One of the most debated issues concerns the entitlement of a share of the Severance Pay (Trattamento di Fine Rapporto - TFR) to the ex-spouse, especially when the payment methods vary from the standard. As a divorce lawyer in Milan, Avv. Marco Bianucci often encounters situations where an employee, in agreement with their company, decides to convert their TFR into other benefits or incentives, raising questions about the protection of the other spouse's rights.

Italian law, specifically Article 12-bis of the Divorce Law, clearly states that a divorced spouse, if not remarried and entitled to spousal support, has the right to a percentage of the severance pay received by the other spouse, even if it accrues after the divorce decree. This share corresponds to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. However, modern company practices have introduced mechanisms such as corporate welfare or exit incentives that can complicate the calculation and actual collection of what is owed.

Waiver of Severance Pay and Conversion to Welfare: Risks for the Weaker Spouse

The crucial issue arises when the working spouse decides to waive immediate monetary settlement of their TFR in favor of alternative forms of remuneration, such as corporate welfare plans, stocks, or exit incentives structured in a way that they do not formally appear as TFR. This operation, while legitimate from an employment law perspective, can sometimes conceal the intention to withhold part of the assets from division with the ex-spouse. It is fundamental to understand that the legal nature of the sums is decisive: if an incentive is paid as compensation or a novating settlement, it may not fall within the calculation base for the 40% share, causing economic prejudice to the entitled party.

Jurisprudence is increasingly attentive to these evasive maneuvers. Courts tend to assess the economic substance of the transaction rather than its formal qualification. If it can be proven that the conversion of TFR into other benefits was instrumental in reducing the amount due to the ex-spouse, legal action can be taken to recover the sums. This requires an in-depth technical analysis of employment documents and any collective or individual agreements signed by the employee.

The Approach of Studio Legale Bianucci in Milan

The approach of Avv. Marco Bianucci, an expert family law attorney in Milan, is distinguished by meticulous asset investigation. When dealing with a case of potential concealment or conversion of TFR, the firm does not limit itself to examining the final payslip. The strategy involves a cross-analysis of settlement agreements with the employer, welfare plans, and any other remuneration item that might conceal the TFR payout. The objective is to reconstruct the actual amount accrued during the marriage to ensure that the client obtains the rightful share provided by law.

At the office located at via Alberto da Giussano 26, every case is handled with the utmost confidentiality and expertise. Avv. Marco Bianucci works to unmask any simulations, protecting the client's right not to see their claim eroded due to financial engineering or complex employment agreements. The defense of financial rights in divorce requires a holistic view that combines family law expertise with a solid understanding of labor law dynamics.

Frequently Asked Questions

How exactly is the ex-spouse's share of severance pay calculated?

The share due to the ex-spouse is equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. For the calculation, the net severance pay received is considered and multiplied by the number of years of marriage (up to legal separation or, according to more recent case law, up to the cessation of cohabitation), then related to the total duration of the employment relationship.

If my ex converts their TFR into corporate welfare, do I lose my right to my share?

Not necessarily. If the conversion is voluntary and the economic value is attributable to the accrued TFR, the right to the share remains. However, recovering such an amount can be more complex and may require specific legal action to demonstrate that these benefits, in substance, constitute the payout of the TFR. Professional assistance is essential to analyze company documentation.

What happens if the ex-spouse receives an exit incentive instead of TFR?

An exit incentive is technically different from TFR and, according to the prevailing orientation of the Court of Cassation, does not automatically fall within the calculation base for the 40% share, as it has a compensatory rather than deferred remuneration nature. However, if the incentive actually masks the payment of TFR to evade the ex-spouse's rights, the transaction can be challenged in court.

When does the right to claim the share of TFR mature?

The right matures when the TFR is actually paid out to the employee, which can occur upon termination of the employment relationship or through advances. A legal claim to obtain the share can only be filed after the right has matured and the severance pay has been received by the other spouse, even if this happens years after the divorce.

Request a Legal Consultation in Milan

Issues relating to TFR and corporate benefits in the context of divorce require a clear and timely legal strategy. If you suspect that your ex-spouse is converting their TFR to reduce your share, or if you need clarity on your financial rights, contact Avv. Marco Bianucci. The firm receives clients in Milan at via Alberto da Giussano, 26, and is ready to offer you the necessary assistance to protect your economic interests with professionalism and dedication.