Compensatory Support in Divorce: Concept and Application

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

Compensatory support is set in a divorce to offset the economic gap between spouses when one of them uses or benefits exclusively from shared property while the division of assets is still pending.

Concept and Basis of Compensatory Support

Compensatory support (alimentos compensatórios) is a form of support payment set to make up for a financial imbalance between spouses during or after divorce proceedings. Unlike temporary support (alimentos provisionais), which covers basic living expenses, compensatory support aims to prevent one spouse from being unjustly enriched at the other’s expense.

This remedy is not expressly provided for in Brazilian statutes. It was developed through case law and legal scholarship. Its basis is the principle against unjust enrichment (art. 884 of the Civil Code (CC)) and the spouses’ duty of mutual assistance (art. 1.566, III, of the CC).

The most common situation arises when one spouse keeps using marital property exclusively (a home, vehicles, a business) while the division of assets is still pending. The other spouse, who is deprived of the use of that property, is entitled to compensation for the period of exclusive use.

When Compensatory Support Is Available

The main scenario is one spouse’s exclusive use of the marital home after the couple’s de facto separation. If both spouses own the house and only one remains in it, the other may seek compensatory support equal to half of the property’s rental value.

Exclusive use of vehicles, equipment, businesses and other shared property can also give rise to compensatory support. A spouse who uses shared property alone is benefiting from assets that belong to both and must compensate the other for being deprived of them.

Another relevant scenario is a significant difference in the spouses’ wealth at the time of separation, which leaves one of them in a position of disproportionate economic dependence. Compensatory support evens out that situation until the division of assets redistributes the estate.

This remedy is not expressly provided for in Brazilian statutes. It was developed through case law and legal scholarship.

One spouse’s unilateral management of shared property that produces income (rent, dividends, business profits) that is not shared with the other spouse is a frequent reason for a request for compensatory support.

Setting and Calculating Compensatory Support

The amount of compensatory support is based on the economic benefit the spouse draws from exclusive use of the shared property. For real estate, the market rental value is used and divided in proportion to each spouse’s share. For businesses, the proportional net profit is used.

The judge sets compensatory support as a provisional measure during the divorce and keeps it in place until the division of assets is complete. Once the property has been divided, compensatory support no longer has a purpose and ends.

An expert appraisal of the assets and of the income they produce may be needed to set the right amount. The judge may also set a provisional amount based on estimates and then revise it after the final expert report.

How Compensatory Support Differs from Other Types of Support

Compensatory support differs from temporary support (which is meant to cover basic living expenses during the case), from permanent support (alimentos definitivos, which maintains the standard of living after divorce) and from compensation for exclusive use of a shared asset (which is a credit in the division of property).

In practice, the line between them can be thin. A judge may set a single overall amount of support that includes both a subsistence portion and a compensatory portion, or may set each type separately. Identifying them correctly matters because it determines how long the support lasts and the criteria for revising it.

Legal scholars debate whether compensatory support is truly a form of support. The majority view treats it as support in nature, which allows enforcement through the procedure that can lead to civil imprisonment. The minority view equates it with damages, allowing enforcement only against the debtor’s assets.

Compensatory Support in the Case Law of the STJ (Brazil’s Superior Court of Justice)

The STJ has recognized compensatory support as a legitimate tool for balancing the spouses’ financial positions during and after divorce. The Court stresses that its purpose is to prevent unjust enrichment and to protect the dignity of the spouse left without resources.

In recent decisions, the STJ has held that compensatory support must have a fixed term, preferably lasting until the division of assets is complete. Setting it for an indefinite period is justified only in exceptional situations in which dividing the property is not feasible in the short term.

The Court has also held that compensatory support may be awarded to either the wife or the husband, breaking with the tradition that only the wife is entitled to support in a divorce. The test is objective: whoever is deprived of the use of shared property is entitled to compensation.

Frequently Asked Questions

Can compensatory support lead to imprisonment for nonpayment?

The question is controversial. The majority view holds that compensatory support is support in nature and therefore may be enforced through the civil imprisonment procedure (art. 528 of the Code of Civil Procedure (CPC)). The minority view argues that it is a form of monetary damages, so imprisonment is not allowed. The STJ’s position has varied depending on the specific case and the predominant nature of the payment that was set.

What is the difference between compensatory support and rent for exclusive use of the home?

Compensatory support is set during the divorce case as a support obligation and can be enforced as such. Rent for exclusive use is a property-based credit that can be offset in the division of assets. In practice, the amount may be the same, but the legal nature and the method of enforcement differ. Choosing between the two depends on the procedural strategy adopted.

Does compensatory support end when the division of assets is complete?

Yes. As a rule, compensatory support ends when the division of assets is complete, because its purpose (making up for the financial imbalance) is achieved once the property is actually divided. If the division is only partial, the support may continue with respect to assets that have not yet been divided. Termination is automatic, or the paying party can request it after the division.

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