The Right to a Share of Severance Pay in the Context of Divorce

The end of a marriage necessitates the precise definition of economic relationships between the parties, and one of the most frequently debated aspects concerns the division of Severance Pay (Trattamento di Fine Rapporto - TFR). As a divorce lawyer in Milan, Avv. Marco Bianucci frequently observes how the correct identification of the start and end dates of the employment relationship is crucial for quantifying economic entitlements. Italian law, specifically Article 12-bis of the Divorce Law, establishes that the spouse entitled to a divorce allowance, who 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. This percentage is equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage.

The Crucial Importance of the Hiring Date

To correctly calculate the due share, it is essential to know the ex-spouse's hiring date with certainty. This temporal data serves as the basis for applying the mathematical formula provided by case law: the right to a share arises only for the portion of severance pay accrued during the period of marital cohabitation. If the employment relationship began before the marriage, the calculation must exclude the preceding years; if it began during the marriage, the calculation will differ. Often, however, in litigation before the Court of Milan, it happens that the obligated party does not voluntarily provide the necessary documentation or attempts to obscure the exact start date of the employment relationship to reduce the amount owed to the ex-spouse.

The Bianucci Law Firm's Approach to Documentary Evidence

When faced with reticence or a lack of clear documents, the intervention of an experienced professional becomes fundamental to protecting one's patrimonial rights. The approach of Avv. Marco Bianucci, an expert lawyer in family law in Milan, focuses on the rigorous acquisition of the necessary evidence to substantiate the economic claim. We do not limit ourselves to basing the calculation on the parties' statements but proceed through official channels to obtain irrefutable data. The firm's strategy involves the use of specific procedural tools, such as a request for an order to produce documents pursuant to Article 210 of the Code of Civil Procedure (c.p.c.) addressed to the employer or social security institutions, should the ex-spouse not cooperate.

In the Milan legal district, precision is everything. Avv. Marco Bianucci works to reconstruct the ex-spouse's employment history by cross-referencing available data, requesting contribution statements or historical payslips that unequivocally attest to the hiring date. This analytical method allows for the precise isolation of the period of overlap between work and marriage, ensuring that the 40% calculation is applied to the correct taxable base. The objective is to transform an abstract right into a concrete and certain sum, avoiding approximations that could economically harm the client.

Frequently Asked Questions

Am I entitled to severance pay if I am only separated and not divorced?

No, the right to a share of the ex-spouse's severance pay arises exclusively with the final divorce decree. During the separation phase, even if judicial, this right is not yet enforceable, although severance pay may be considered in assessing the general economic capacity of the spouse obligated to provide maintenance.

What are the fundamental requirements to obtain the share of severance pay?

To be able to claim the 40% share of severance pay, three concurrent requirements are necessary: the divorce decree must have become final and unappealable, the applicant must be entitled to a periodic divorce allowance, and they must not have remarried. The absence of even one of these elements precludes the right to collection.

How exactly is the due share calculated?

The share corresponds to 40% of the total net severance pay received by the ex-spouse, attributable to the years in which the employment relationship coincided with the marriage. For the calculation, the years of marriage up to the separation decree or, according to the most recent orientation of the Court of Cassation, up to the cessation of cohabitation, are considered, in proportion to the total duration of the employment relationship.

What happens if the ex-spouse has already spent the severance pay or received it years ago?

The right to a share arises at the moment the severance pay is received. If the ex-spouse received it after the divorce decree and did not pay the due share, legal action can be taken to recover the debt. If the severance pay was received before the divorce application, the matter is more complex and must be analyzed on a case-by-case basis, as the sums may have already been considered in determining the family's economic arrangements.

Request Legal Consultation in Milan

The correct determination of the severance pay share is a technical step that requires expertise and attention to procedural details. If you require assistance to verify your rights or to obtain the necessary documentation to prove your ex-spouse's hiring date, the Bianucci Law Firm is at your disposal. We receive at our Milan office at Via Alberto da Giussano, 26. Contact Avv. Marco Bianucci for a preliminary assessment of your situation and to define the most appropriate strategy for your specific case.