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Court Acknowledges That, In Exceptional Situations, The Fund Can Be Used To Settle Alimony Obligations, Even Though It Is Considered Unattachable By Law.
The Severance Indemnity Fund (FGTS) is, by rule, a resource protected against judicial blocks. The Law No. 8.036/1990, which regulates the fund, states that the amounts deposited in the worker’s name are “absolutely unattachable”, precisely because they have a salary character and are intended to guarantee subsistence in moments of dismissal, retirement or in specific situations provided by law.
This legal protection has always been interpreted as a barrier against any attempt at attachment. However, Brazilian Justice has begun to recognize that there are exceptions where the untouchability of FGTS must give way to even more relevant rights. This is the case with alimony debts.
The Position of the STJ
The Superior Court of Justice (STJ) has consolidated the understanding that, in cases of alimony execution, the balance of FGTS can indeed be attached to ensure the survival of the alimentary creditor. This measure is based on the principle of human dignity and on the essential nature of alimony, which ensures support for children, ex-spouses, or dependents.
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For the court, the logic is simple: although FGTS is a resource intended to protect the worker, the immediate need for food takes even higher priority. After all, the subsistence of a child or a person in a dependency situation cannot wait.
When Attachment Can Be Authorized
It is important to highlight that FGTS attachment does not occur automatically. It is only authorized in exceptional situations, when the alimony creditor has exhausted other collection alternatives without success. Justice typically evaluates three main factors:
- Proof of the alimony debt in judicial execution;
- Non-existence of other attachable assets of the debtor;
- Preservation of the debtor’s dignity, so that the block does not completely compromise their subsistence.
Only in light of these elements can the judge authorize the withdrawal of FGTS for debt settlement.
Practical Cases Already Judged
The STJ has decided in different contexts involving FGTS attachment. In some cases, the court allowed the use of the balance to settle court-appointed alimony. In others, it admitted the block for payment of lifetime alimony resulting from an unlawful act, such as compensations where the victim became financially dependent on the responsible party.
In all cases, the reasoning was the same: the right to life and the dignity of the alimony creditor must prevail over the unattachability of the fund.
The Impact for Creditors and Debtors
In practice, this decision represents a relief for alimony creditors facing difficulties in receiving amounts owed. Often, debtors do not have other assets in their names or do not maintain balances in bank accounts, making judicial enforcement nearly impossible. The option to resort to FGTS guarantees an additional path to satisfy the debt.
For debtors, on the other hand, the measure serves as a warning. The fact that FGTS is protected does not mean that it is safeguarded in all situations. In case of default on alimony, even this resource can be used to settle the obligation.
The Balance Sought By Justice
Although the decision opens space for attachment, STJ ministers emphasize that it should not be applied indiscriminately. It is an exception to the rule of unattachability, applicable only when traditional collection methods do not resolve the problem.
Thus, a balance is sought: to protect the worker and their guarantee fund, while at the same time preventing the fundamental right to food from being compromised by unpaid debts.
Alimony As An Absolute Priority For The STJ
The authorization of FGTS attachment for alimony payment shows how the Judiciary interprets the law in light of greater values, such as human dignity and the right to life. Although the fund is, in general, unattachable, the STJ believes that there cannot be absolute shielding when someone’s subsistence is at stake.
In other words, the general rule of FGTS protection remains. But in exceptional situations, where there are no other means to guarantee alimony, Justice can indeed determine that this resource be used to settle alimony debts.
The decision sends an important message: alimony is an absolute priority and must be paid, even if this requires resorting to funds traditionally protected by law.
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