Pensão alimentícia (support): criteria for setting, reviewing and terminating the amount

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

Brazilian law does not set a fixed percentage for pensão alimentícia (court-ordered family support). The amount comes from weighing the needs of the person who receives support against the ability of the person who pays. Judges apply this test when they set, review or reduce support owed to children, former spouses and even elderly parents.

What the “need and ability” test means

Every discussion about support starts with a rule of proportionality. Article 1.694 of the Civil Code requires that the amount be set according to the needs of the person asking for support and the resources of the person who has the duty to pay. There is no official table that imposes 20% or 30% of income. The percentage that has become common in practice is only a reference point, never an automatic ceiling or floor.

Need measures how much a person requires to live with dignity: food, housing, health care, education, clothing and leisure that fit the family’s circumstances. Ability measures the financial capacity of the person who pays, taking into account income, assets, fixed expenses and any other dependents. When the two sides of the scale balance, you arrive at a fair amount. If need grows or ability shrinks, the number tends to change.

The same reasoning explains why two similar cases can end with very different amounts. A father who earns three minimum wages and supports two other children will not be treated like another who has a high income and no significant expenses. The judge looks at the whole picture, not just the paycheck. Proof of spending, bank statements and documents that reveal the real standard of living carry as much weight as declared income.

Keep in mind that ability is not the same thing as salary. A judge may consider outward signs of wealth, such as real estate, vehicles, travel and financial activity, especially when the paying party is self-employed or a business owner who reports low income. Courts crack down on hiding earnings to reduce support, and the discovery of undisclosed assets usually counts against the person who tried to avoid the obligation.

Who is entitled to support and who must pay

The duty of support is not limited to the relationship between parents and minor children. The law establishes a mutual duty of assistance among relatives, spouses and partners, which gives it a much broader reach. Direct-line kinship, which connects grandparents, parents, children and grandchildren, is the most common basis, but family solidarity can extend to other situations provided for in the Civil Code.

Minor children are the most frequent recipients. Until age 18, need is presumed, and the parent-child relationship is all that must be shown. After a child reaches adulthood, support does not end automatically: if the young person is enrolled in a technical or college program and still cannot be self-supporting, courts usually keep the payments going, generally until age 24. Children with disabilities who need permanent care may receive support for an indefinite period.

When there are children from different relationships, each one is entitled to proportional support, and the birth of a new child can be grounds for reviewing the amount paid to the first. The goal is to keep all dependents on balanced footing, so that no one benefits at another’s expense. The division takes into account each child’s needs and the total income available to the person providing support.

A former spouse or former partner may also seek support, although under stricter criteria. Courts today tend to award temporary support, only for as long as the person needs to get back on their feet and return to the job market. So-called transitional support (alimentos transitórios) has a set end date and stops when the period for finding new work runs out. Support for an indefinite period is now reserved for exceptional cases, such as advanced age or a disability that prevents the person from earning a living.

The reverse situation is less well known but equally valid. Elderly parents who cannot provide for their own living expenses can demand support from their children, based on both the Civil Code and the Statute of the Elderly (Brazil’s Elderly Persons Statute). In that case, responsibility is usually divided among all the children in proportion to their means. One child does not bear the full amount alone when siblings are able to contribute.

The same reasoning explains why two similar cases can end with very different amounts.

When and how the amount can be reviewed

No support order is set in stone. The amount reflects the reality at a specific moment, and that reality changes. The law expressly allows a review whenever the financial situation of the payer or the recipient changes. This is the rebus sic stantibus clause applied to support, which allows an agreement to be revisited when the circumstances that justified it no longer exist.

The recipient can ask for an increase when expenses grow significantly. Enrollment in a private school, a health problem that requires ongoing treatment, or simply getting older, which naturally raises costs, can all justify the request. An increase is also appropriate when it is shown that the payer’s income has risen substantially since the original order.

The payer, in turn, can ask for a reduction in situations such as unemployment, a documented drop in revenue, the birth of a new child or an illness that limits the ability to work. There is also termination (exoneração), which ends the obligation altogether. It happens, for example, when the child reaches adulthood and becomes self-supporting, or when the reason for the support no longer exists. Termination is not automatic and requires a court decision.

A review does not happen on its own. Cutting back payments without court authorization is a serious mistake, because the debt keeps accruing at the old amount and can lead to collection efforts and even jail time. The correct path is an action to modify support (ação revisional de alimentos), in which the party presents evidence of the change and asks for an adjustment. Until the court rules, the previous amount remains in force and must be paid in full.

What happens when support is not paid

Brazilian law takes a strict approach to failure to pay support, because someone’s basic survival is at stake. A person who stops paying faces consequences ranging from credit restrictions to loss of liberty. A support enforcement action is the tool the creditor uses to collect overdue installments, and the law offers two distinct procedures with different purposes.

The harsher procedure allows civil imprisonment of the debtor. It applies to the three installments that fell due before the case was filed and to any that come due while the case is pending. Once notified, the debtor has a deadline to pay, prove that payment was already made, or justify the absolute impossibility of paying. If no valid excuse is given, the judge may order imprisonment for one to three months, in a closed regime. Serving the sentence does not erase the debt, which remains enforceable.

The second procedure targets the debtor’s assets. It allows seizure of property, freezing of funds in bank accounts, direct payroll deduction and registration of the debt for protest at a notary’s office, as well as listing the debtor’s name with credit bureaus. Payroll deduction is one of the most effective methods, because it withholds the installment at the source, before the salary ever reaches the debtor’s hands.

To set these mechanisms in motion, the creditor submits a statement of the debt and indicates the procedure sought. Nothing prevents combining strategies: collecting the last three installments through the imprisonment procedure and the older ones through the asset-seizure procedure. Having professional guidance helps in choosing the most efficient path, since the method of collection directly affects how quickly the money reaches the person who needs it.

It is worth noting that support payments enjoy special protection. They can reach even part of funds that are normally exempt from seizure, and they are not subject to the same limits as other debts. For that reason, ignoring the obligation is rarely a workable strategy. Seeking a court review whenever your ability to pay changes is the safe path, both for the person who pays and for the person who depends on the money.

Frequently Asked Questions

Is support always 30% of income?

No. No percentage is required by law. The 30% figure has become a practical reference, but the real amount depends on the need-and-ability test. A judge can set a higher or lower percentage, depending on the recipient’s expenses and the payer’s financial capacity. Instead of a fixed number, what matters is the balance between the two sides, shown through documents and the reality of each family.

Does child support end when the child turns 18?

Not automatically. When a child reaches adulthood, the presumption of need ends, but payments may continue if the child is still studying and cannot be self-supporting, which is common until age 24. To end the obligation, the parent must file an action for termination, rather than simply stopping payment. Stopping on your own creates a debt and can lead to the same consequences as any other default, including civil imprisonment.

Can I reduce the amount if I lose my job?

Yes, as long as you go through the proper channel. Unemployment or a documented drop in income justifies a request for a reduction through an action to modify support. What is not allowed is cutting the payment on your own, because the debt keeps growing at the old amount until the judge decides. Gather proof of your change in circumstances, such as your termination papers and bank statements, and file the request before the arrears pile up.

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