The Right to a Share of Severance Pay in Divorce

The end of a marriage involves not only the emotional management of separation but also a complex financial reorganization that includes often overlooked or poorly understood rights, such as the share of Severance Pay (Trattamento di Fine Rapporto - TFR). As a divorce lawyer in Milan, Avv. Marco Bianucci deals daily with issues related to the application of Article 12-bis of the Divorce Law (L. 898/1970). This provision states that a divorced spouse, provided they have not remarried and are entitled to a divorce allowance, 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 Specificity of Vertical Part-Time Work in Calculation

The situation becomes particularly delicate when the working spouse is employed under a vertical part-time contract. This type of contract involves working full-time but only for specific periods of the year (specific weeks or months), alternating with periods of unpaid leave. The complexity lies in correctly determining the calculation basis for the division of severance pay. The central legal issue concerns how to consider the periods of non-work within the length of service and, consequently, in relation to the duration of the marriage. This is not a mere arithmetic calculation but an assessment that must respect the principles of substantive equity, preventing the requesting spouse from obtaining a disproportionate share compared to the actual amount accrued during the marital cohabitation.

The Approach of the Bianucci Law Firm

The approach of Avv. Marco Bianucci, an expert lawyer in family law in Milan, is distinguished by the meticulous analysis of employment and social security documentation. In cases of vertical or cyclical part-time work, the firm does not limit itself to applying standardized formulas that could penalize one of the parties. The firm proceeds with a detailed reconstruction of the work career, verifying the actual accrual of severance pay during periods coinciding with the legal marriage and, if relevant, with pre-marital cohabitation where jurisprudence allows. The firm's strategy aims to ensure that the calculation of the 40% share is made on the net amount actually attributable to the period of temporal coincidence, excluding periods that should not be included in the computation. This level of detail is essential to prevent future disputes and ensure that the client's rights, whether as the obligated spouse or the beneficiary, are fully protected.

Frequently Asked Questions

How exactly is the share of severance pay due to the ex-spouse calculated?

The law provides that the share is equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. To perform the calculation, the net severance pay received is multiplied by 40%, and then the result is multiplied by the number of years of marriage during which the work was performed, finally dividing by the total duration of the employment relationship. In the case of vertical part-time work, this calculation requires specific attention to the periods of actual performance.

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

No, the right to a share of severance pay arises exclusively with a final and binding divorce decree. During the separation phase, even if legal, this right does not yet exist. However, it is crucial for the lawyer to consider this future entitlement already during the separation proceedings to correctly plan future financial arrangements.

What happens if the severance pay is paid out before the divorce decree?

If the severance pay is received by the employee after the divorce petition but before the final decree, or even after the decree, the right to a share remains valid. If the employee has already collected the sum and does not voluntarily pay it, the entitled ex-spouse can take legal action to obtain it. It is crucial to act promptly to prevent the sums from being dissipated.

Does vertical part-time work reduce the amount of severance pay due to the ex-spouse?

The absolute amount of severance pay accrued by a part-time worker is naturally lower than that of a full-time worker, and consequently, the 40% share will also be calculated on a smaller base. However, the proportion remains the same. The technical difficulty lies in correctly calculating the denominator of the fraction, i.e., the years of actual work, so as not to distort the ratio with the years of marriage.

Request a Case Evaluation in Milan

Issues related to the division of severance pay, especially in the presence of atypical employment contracts such as vertical part-time work, require specific expertise that combines matrimonial law with elements of labor law. If you have doubts about the calculation of the share due to you or the amount you must pay to your ex-spouse, contact Avv. Marco Bianucci for an in-depth consultation. The Bianucci Law Firm awaits you in Milan at Via Alberto da Giussano, 26, to analyze your situation with the utmost confidentiality and professionalism.