The delicate balance between severance pay and the right of habitation in divorce

The end of a marriage involves a complex reorganization not only emotionally but also, and above all, financially. One of the most technical aspects, and often a source of bitter disputes, concerns the relationship between the share of severance pay (TFR) due to the ex-spouse and the potential assignment of the family home. Many clients who turn to our firm wonder if the enjoyment of the property, which represents an undoubted economic value, can reduce or even nullify the claim on the liquidation of the other spouse. As a divorce lawyer in Milan, Avv. Marco Bianucci deals with these dynamics daily, aware that every economic detail must be evaluated to ensure substantial fairness between the parties.

The regulatory framework: TFR share and home assignment

Divorce law (L. 898/1970, art. 12-bis) establishes that the spouse entitled to a divorce allowance, who has not remarried, is entitled to a percentage of the severance pay received by the other spouse, even if it accrues after the judgment. This share is equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. However, the jurisprudence of the Court of Cassation has clarified that this right is not a blind automatism detached from the general economic context. The assignment of the family home, while being a measure taken primarily in the interest of the children, constitutes a relevant economic value for the custodial parent, who saves the expense of rent. This economic advantage (often referred to as 'imputed rent') becomes part of the financial balance between the parties. In determining the divorce allowance and related entitlements such as TFR, the judge can and must take into account the fact that one of the spouses enjoys the home, proportionally reducing other economic entitlements to avoid unjust enrichment.

The Bianucci Law Firm's approach to quantification

Avv. Marco Bianucci, an expert lawyer in family law in Milan, adopts an analytical and mathematical approach in managing these disputes. We do not limit ourselves to requesting or contesting the TFR share based solely on legal percentages, but we carry out a comprehensive assessment of the post-marital financial arrangement. The firm's strategy involves analyzing the rental value of the assigned property to demonstrate how this benefit affects the income and asset capacity of the beneficiary spouse. If we represent the spouse obligated to pay, our goal is to demonstrate that the assignment of the home has already compensated, in whole or in part, the economic disparity, making the claim for the TFR share excessive or undue. Conversely, in protecting the weaker spouse, we work to highlight how the right of habitation is not sufficient to bridge the economic gap, keeping the right to the liquidation share intact. This attention to detail, typical of a lawyer experienced in complex successions and property divisions, allows for agreements or judgments that reflect the real economic situation of the parties, avoiding unjust imbalances.

Frequently Asked Questions

Does the assignment of the home automatically reduce the TFR share?

There is no legislative automatism, but it is a consolidated jurisprudential principle. The judge, when assessing the economic conditions of the spouses, considers the value of the enjoyment of the home (rent savings) as a component of the beneficiary's income. This can lead to a reduction in the divorce allowance and, consequently, influence the assessment of entitlement or the amount of the TFR share, with a view to an overall balancing of resources.

How is the economic value of the right of habitation calculated?

The value is not arbitrary but is usually benchmarked against the market rent for similar properties in the same area of Milan or the municipality of residence. This 'imputed rent' represents the monthly savings of the assigned spouse and the lost income for the owner (often the other spouse or both). Avv. Marco Bianucci uses precise real estate appraisals and valuations to quantify this amount and use it as leverage in negotiations on TFR liquidation.

If I do not receive a divorce allowance, am I entitled to my ex-spouse's TFR?

No, receiving the divorce allowance is an indispensable prerequisite for being entitled to a share of the TFR. If the judge has determined that the spouse is economically self-sufficient (perhaps precisely because of the assignment of the home or their own income) and is not entitled to a periodic allowance, the right to claim a share of the ex-partner's liquidation also automatically lapses.

Can TFR be offset against other sums owed?

Yes, offsetting is possible and often desirable to definitively settle financial matters. It is common for parties, in divorce agreements, to decide to offset the accrued or future TFR share with other financial items, such as arrears of maintenance, extraordinary expenses for children, or, indeed, the value attributed to the enjoyment of the marital home for a specific period.

Request an assessment of your case in Milan

Financial matters in divorce require technical expertise and a holistic view. If you find yourself having to manage the division of TFR or assess the impact of the home assignment on your economic rights, rely on the experience of the Bianucci Law Firm. Contact Avv. Marco Bianucci for a consultation at the office located at via Alberto da Giussano, 26 in Milan. We will analyze your specific situation to protect your assets and ensure the respect of your rights.