Addressing the phase following separation often involves managing complex financial matters that can re-emerge at the time of final divorce. One of the topics that generates the most doubt concerns the Severance Pay (Trattamento di Fine Rapporto - TFR) and, specifically, whether salary increases obtained by one spouse after separation but before divorce should be included in the calculation of the share due to the other. As a divorce lawyer in Milan, I fully understand how these uncertainties can create tension, both for those who fear having to share the fruits of their exclusive post-separation work efforts, and for those who want to ensure their economic rights are fully respected.

The Regulatory Framework: TFR and the End of Marriage

In Italy, Article 12-bis of the Divorce Law (Law 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 equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. The calculation is made by multiplying 40% by the number of years of marriage (up to the separation decree) during which the work was performed.

However, the issue becomes complicated when salary increases occur during the separation period. Case law tends to distinguish the nature of such increases. If the salary increase is physiological, meaning linked to mere seniority or cost-of-living adjustments (inflation), it tends to be included in the calculation base, as it is considered a natural evolution of the employment relationship that began during the marriage. Conversely, if the increase is the result of exceptional career advancements or personal merits acquired exclusively after separation, the interpretation may vary, aiming to exclude such amounts from the calculation base for the ex-spouse's share, so as not to unfairly penalize the employee.

The Approach of Studio Legale Bianucci in Milan

At Studio Legale Bianucci, we analyze every single item that makes up the Severance Pay to ensure a fair calculation in accordance with the most recent rulings of the Court of Milan. The approach of lawyer Marco Bianucci, as an expert in family law, consists of carefully examining payslips and the client's work history to identify the precise nature of salary increases.

We do not limit ourselves to applying standard mathematical formulas. If we assist the working spouse, we work to demonstrate, where possible, that certain increases are strictly personal and subsequent to the end of marital cohabitation, thus protecting the fruits of individual post-separation work. Conversely, if we assist the requesting spouse, we ensure that the calculation base is not artificially reduced and that all rights accrued on seniority increments and contractual adjustments are recognized. The goal is always to reach a transparent financial settlement, avoiding lengthy and costly litigation.

Frequently Asked Questions

How exactly is the TFR share for the ex-spouse calculated?

The share corresponds to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. For the calculation, the duration of the marriage up to the separation decree (or the homologation of the consensual separation) is considered. It is essential to have the exact data on the start of the employment relationship and the date of legal separation.

Does the ex-spouse always have a right to TFR?

No, the right is not automatic. To obtain the TFR share, the ex-spouse must be entitled to a divorce allowance (which must be paid periodically and not in a lump sum) and must not have remarried. If even one of these requirements is missing, the claim cannot be made.

What happens if the TFR is paid out years after the divorce?

The right to the share arises at the moment the TFR is actually received by the employee. If the divorce has already occurred, the ex-spouse can file a request with the Court to obtain their portion. It is important to monitor the ex-spouse's employment situation to act promptly when the employment relationship ends.

Are merit increases obtained after separation excluded from the calculation?

Often yes, but it depends on the evidence provided. If it can be demonstrated that the increase is due to exceptional effort or a promotion obtained solely through activity carried out after separation, it is possible to request that this portion of the increase be excluded from the calculation base on which 40% is applied. The assessment must be made on a case-by-case basis.

Request a Legal Consultation in Milan

Financial matters related to divorce require precision and technical expertise. If you have doubts about the calculation of the TFR share or the impact of salary increases, contact lawyer Marco Bianucci for an assessment of your case. The firm receives clients in Milan at Via Alberto da Giussano, 26, and is ready to define the most suitable strategy to protect your economic interests.