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According to the consolidated understanding of the Superior Court of Justice, the 13th salary and the constitutional one third of vacation pay are part of the calculation base for alimony, increasing the amount due in specific months when these payments are made to the caregiver.
The alimony must be calculated on all salary-related benefits, not just on the base salary. This understanding, established by the Superior Court of Justice (STJ) in Repetitive Theme 192 and in Special Appeal No. 1.106.654, determines that the 13th salary and the constitutional one third of vacation pay are also part of the total remuneration of the debtor, generating additional amounts to be paid in December and during vacations.
In practice, this means that the alimony beneficiary, usually children or ex-spouses, receives an additional amount during the annual bonus and paid leave periods of the caregiver. The rule seeks to ensure financial balance and maintain the standard of living of the beneficiary, aligning the alimony with the real remuneration of the payer.
Legal Basis and Application of the Rule
The STJ established jurisprudence by recognizing that both the 13th salary and the constitutional one third of vacation pay are salary payments and, therefore, must be included in the alimony calculation base.
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The decision is based on Article 7, Section VIII of the Federal Constitution, and on Law No. 8.069/1990 (ECA), which guarantees the right to a dignified subsistence for children and adolescents.
This incidence, however, is not automatic. For the deduction to occur, it is necessary that it is expressly provided for in the judicial decision that set the alimony or in a judicially approved agreement.
In cases where the decision was silent, the beneficiary can propose a food revision action to include these payments in the calculation base.
When the Alimony Is Set as a Percentage
The rule has more direct application when the alimony is stipulated as a percentage of the caregiver’s net income, for example, 30% of the salary.
In this case, the percentage applies to all salary components received, such as the 13th salary, vacation pay, overtime, night differentials, and hazardous duty pay.
In situations where the alimony was set at a fixed amount, such as R$ 1,500 per month, or linked to the minimum wage, the incidence on the 13th salary and the one third of vacation pay only occurs if expressly provided in the ruling.
Otherwise, the monthly amount remains unchanged, regardless of bonuses or additional payments received.
How the Calculation Works in Practice
In the months when the worker receives the 13th salary, the percentage of alimony is applied to the full amount of the bonus.
Since the payment is divided into two installments, the deduction concerning the alimony is usually made on the second installment, paid in December, along with other legal deductions.
In the case of the constitutional one third of vacation pay, the alimony is calculated on the additional amount corresponding to one third of the monthly salary, and the deduction occurs in the same month that the caregiver receives the benefit.
This increase generates a higher payment during the vacation period, reflecting the temporary increase in income.
Example:
A worker with a salary of R$ 3,000 and alimony of 30% will pay R$ 900 per month. In the month in which they take a vacation, they will receive an additional R$ 1,000 of constitutional one third, for which an additional R$ 300 of alimony will be applied.
In December, when receiving the 13th salary, the deduction will again be R$ 900, totaling two extra alimony amounts throughout the year.
And If the Caregiver Does Not Make the Extra Payment?
If the judicial ruling determines that the alimony should apply to the 13th salary and the one third of vacation pay, but the debtor does not make the additional payment, it is possible to file an alimony execution action.
In this type of judicial collection, the amounts owed can be updated, increased by fines, and, in extreme cases, even result in civil imprisonment of the debtor, as provided in Article 528 of the Civil Procedure Code.
Failure to pay these amounts can constitute partial noncompliance, as the alimony obligation covers all salary-related payments.
Thus, the courts understand that the omission in these periods also infringes upon the rights of the beneficiary to the full amount of resources set judicially.
The Importance of Reviewing and Adjusting the Judicial Decision
In cases where the original ruling does not specify the inclusion of the 13th salary and the one third of vacation pay in the alimony calculation, the benefiting party may request judicial review.
This update is important to adjust the alimony to the changes in the financial reality of the caregiver and to ensure fairness in the annual transfer of amounts.
Moreover, the consolidated understanding by the STJ serves as a reference for lawyers, judges, and public defenders, who have applied the rule as a standard for calculating new alimony cases.
The goal is to standardize the interpretation and ensure that the alimony reflects all the remuneration components of the worker.
Do you think it is fair for the 13th salary and the one third of vacation pay to be part of the alimony calculation base? Or do you believe it should depend on each case? Share your opinion in the comments; we want to hear from those who experience this reality firsthand.
Eu estou recebendo pensão alimentícia provisória para meus dois filhos com esquizofrenia. Este ano puseram no holerite a pensão alimenticia.
Ele paga 13° salario também com desconto de IRPF, e ele não paga das férias. Estou pobre e o pai de meus filhos está no paraíso. Eu não posso trabalhar porque tenho que cuidar e não me paga nenhuma pensão pra mim.
Porém gostaria saber que direitos tenho e meus filhos?
Grata!