Support Lawsuit: Step by Step to Request Alimony

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

A support lawsuit lets children, spouses, and other dependents obtain the support they need through the courts. Understanding each stage of the process reduces mistakes and speeds up the granting of temporary support.

When an agreement between the parties breaks down, going to the courts is the safest way to make sure that a person who depends financially on someone else receives the support he or she is entitled to. The process follows a special procedure set out in Law No. 5.478/1968 (the Support Law), read together with the 2002 Civil Code and the 2015 Code of Civil Procedure (CPC), a consolidated body of rules that governs everything from who may file a claim to the enforcement of unpaid support.

Who Can Request Support and What the Legal Basis Is

The duty of support arises from family ties and is regulated by Articles 1.694 to 1.710 of the Civil Code. The people who may seek support are minor children and adult children who are legally incapacitated, adult children who are students up to age 24 and can prove dependence, a spouse or partner in need after a separation, ascendants (parents and grandparents) who cannot provide for themselves, and siblings, when need is shown.

Courts set the amount using the need-and-ability-to-pay test: the amount must be enough to meet the basic needs of the person receiving support and, at the same time, be consistent with the financial capacity of the person paying. Article 1.694, § 1.º, of the Civil Code requires that the claim cover what is essential for sustenance, housing, clothing, health, education, and leisure, in proportion to the social standing of the parties.

Besides the civil support that arises from kinship or marriage, there is pregnancy support, provided for in Law No. 11.804/2008. It allows a pregnant woman to request support from the alleged father from conception until the child’s birth, covering prenatal care, delivery, and the baby’s first months of life.

How to File the Lawsuit: From the Initial Petition to the Hearing

The first step is to gather the necessary documents: a birth or marriage certificate proving the family relationship, documents showing the recipient’s need (bank statements, proof of expenses, income statement), and evidence of the payer’s financial capacity (pay stubs, statements, income tax return, and a search of the CNPJ (Brazil’s corporate taxpayer registry) for companies in which the payer is a partner).

The initial petition must identify the competent court (as a rule, the one where the recipient lives, under Article 53, II, of the CPC), identify the parties, describe the facts that justify the claim, state the amount sought based on the legal test, and request temporary support. The special procedure under Law No. 5.478/1968 allows the conciliation and evidentiary hearing to be scheduled within 5 days after the judge’s initial order.

The amount of support must meet the real needs of the person receiving it and respect the ability of the person paying, in line with the legal test set out in the Civil Code.

At the hearing, the judge will try to reach a settlement. If the parties agree, the agreement is approved by the court and immediately has the force of a judicial enforceable instrument. If there is no settlement, the payer presents an oral defense, the parties offer summary evidence, and the judge issues a decision at the hearing itself or within 5 days. The whole process is designed to be fast, because support is a debt of a subsistence nature that calls for quick payment.

Temporary and Permanent Support, and the Possibility of Review

On receiving the initial petition, the judge may set temporary support based on the evidence the plaintiff presents, without first hearing the defendant. This support remains in force throughout the case and is owed from the date the defendant is served. Article 528 of the 2015 CPC provides that nonpayment exposes the debtor to civil imprisonment of up to 90 days, which reinforces the coercive nature of the support debt.

After a judgment sets permanent support, the amount can be reviewed whenever the parties’ financial circumstances change, under Article 1.699 of the Civil Code. The review action follows the same special procedure and may be filed by either the creditor or the debtor. When payments are missed, enforcement can proceed in two ways: through seizure of assets (payroll deduction, attachment of property) and through personal coercion (civil imprisonment). Both can be combined for different debts.

Direct payroll deduction, provided for in Article 529 of the CPC, is the most effective way to ensure continuous payment of support when the debtor is a formal employee or a public servant. The judge sends an official order to the employer to withhold the amount each month and transfer it to the creditor.

Strategies for Setting a Fair Amount and Avoiding Unfavorable Reviews

For the creditor, it is essential to document all monthly expenses: school, health insurance, medication, food, clothing, and leisure in keeping with the family’s standard of living. Bank statements and receipts make the claim concrete and make it harder to have the amount reduced in the judgment.

For the debtor, presenting complete documentation of income and existing financial commitments prevents awards that do not match reality. Concealing variable income or ownership interests in companies is usually counterproductive: the judge has access to systems such as Infojud (the court system for accessing income tax return data) and Bacenjud (the court system for accessing bank records), and may also order an accounting expert examination when the parties disagree about financial capacity.

A recurring question is whether support can be set as a percentage of salary or as a fixed amount. Both are valid; however, a percentage makes automatic updating with salary raises easier and reduces the need for frequent review actions. A clause providing for annual adjustment by the INPC or IPCA (Brazilian consumer price indexes) can be included in the judgment or in the court-approved agreement.

To understand how court-approved and out-of-court agreements interact in family matters, see the firm’s guide to consensual divorce step by step, which covers the division of property and other issues that often arise alongside a request for support.

Support Between Ex-Spouses and Specific Situations

After a divorce or the dissolution of a stable union, the former spouse or partner may seek support by showing an inability to provide for himself or herself and a need arising from the prior marital situation. Article 1.704 of the Civil Code provides that the spouse at fault for the separation is entitled only to the support essential for survival, while the innocent spouse may seek support consistent with the standard of living during the marriage.

Under the 2015 CPC, fault lost relevance in contested divorce, but under some judicial interpretations it may still influence the amount of support between ex-spouses. For that reason, specialized legal advice is decisive in building the best strategy from the initial petition onward.

Grandparent support, owed by grandparents, follows the rule of subsidiarity: it can be demanded only when the parents are unable to meet the obligation. Súmula 596 of the STJ (Brazil’s Superior Court of Justice) established the understanding that the grandparents’ obligation is complementary and subsidiary in nature and cannot be pursued before the possibility of collecting from the parents has been exhausted.

Questions involving compensation for prolonged nonpayment of support or other harm within the family are also related to the right to compensation for moral damages, a topic we cover in detail in another article from the firm.

Enforcing the Support Debt and the Statute of Limitations

A support debt becomes time-barred after 2 years, counted from the date each installment fell due, under Article 206, § 2.º, of the Civil Code. Installments older than that period cannot be collected through the civil imprisonment procedure, but they can still be enforced through asset seizure within the general limitation period of 5 years for enforcement based on a court judgment.

Enforcement through civil imprisonment requires that the debt consist of the last three unpaid installments, plus those that fall due during the proceedings. For older debts, enforcement is limited to the debtor’s assets. In that case, the creditor may request the attachment of property, the debtor’s entry in the delinquent-debtor registry (Serasajud), and the suspension of the debtor’s passport and driver’s license (CNH). These measures are provided for in Article 139, IV, of the CPC and are widely used by judges to pressure debtors to pay.

Partner Cassius Marques ADVOCACIA

Frequently Asked Questions

How long does it take to receive temporary support after the lawsuit is filed?

The judge may set temporary support as soon as the initial petition is received, even before the defendant is served. In practice, in family courts this usually happens within a few days after filing. The amount takes effect immediately after the preliminary decision and is owed from the date the debtor is served, which gives the recipient quick protection while the case is pending.

Can I request support without a lawyer?

Law No. 5.478/1968 allows a support claim to be made orally at the family court, without a lawyer, when the claimant cannot hire one. However, given the complexity of the required documents, the need to calculate the claim correctly, and the consequences of a poorly drafted agreement, it is strongly recommended to have legal assistance, whether private or through the Public Defender’s Office.

What happens if the debtor changes jobs to avoid payroll deduction?

Changing jobs to avoid payroll deduction amounts to fraud against enforcement and can lead to harsher coercive measures, such as search and seizure of assets, entry in delinquent-debtor registries, and even civil imprisonment. The creditor may ask the judge to order periodic searches of e-Social (the federal system for reporting employment data) or of the CNIS (Brazil’s National Social Information Registry) to locate the debtor’s new employment relationship and to reissue the deduction order to the new employer.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.