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According to the understanding consolidated by the Superior Court of Justice, the 13th salary and the constitutional third of vacation are part of the calculation basis for thought, increasing the amount due in specific months when these amounts are paid to the payer.
A thought alimony must be calculated on all salary-related amounts, not just the base salary. This understanding, established by 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 third of vacation are also part of the debtor's total remuneration, which generates extra amounts to be paid in the months of December and during the holidays.
In practice, this means that the pension recipient, usually children or ex-spouses, receives an additional amount in the periods of annual bonus and paid rest of the payer. The rule seeks to ensure financial balance and maintain the standard of living of the person receiving the alimony, aligning the pension with the real remuneration of the person paying it.
Legal basis and application of the rule
O STJ established jurisprudence recognizing that both the 13th salary as much as constitutional third of vacation are salary payments and, therefore, must be included in the pension calculation basis.
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The decision is based on the Article 7, Section VIII, of the Federal Constitution. You’ll also find places to stay in Law No. 8.069/1990 (ECA), which ensures the right to a dignified subsistence for children and adolescents.
This incidence, however, it is not automatic. For the discount to occur, it is necessary that it is expressly provided for in the court ruling who set the pension or in judicially approved agreement.
In cases where the decision was silent, the beneficiary may propose food review action to include these amounts in the calculation basis.
When the pension is set as a percentage
The rule has more direct application when the pension is stipulated in percentage of net income of the alimony payer, for example, 30% of the salary.
In this case, the percentage applies to all salary installments received, such as the 13th salary, vacations, overtime, night shift bonuses and unhealthy conditions.
In situations where the pension was set at fixed value, such as R$1.500 per month, or linked to the minimum wage, the incidence on the 13th and the third of vacation only occurs if there is an express provision in the sentence.
Otherwise, the monthly amount remains unchanged, regardless of any bonuses or gratuities received.
How the calculation works in practice
In the months in which the worker receives the 13th salary, the percentage of the pension is applied to the full value of the bonus.
As the payment is divided into two installments, the pension discount is usually made in the second installment, paid in December, along with other legal deductions.
In the case of constitutional third of vacation, the pension is calculated on the additional amount corresponding to one-third of the monthly salary, and the discount occurs in the same month in which the payer receives the benefit.
This increase generates a higher payment during the holiday period, reflecting the temporary increase in income.
Example:
A worker with a salary of R$3.000 and a 30% pension will pay R$900 per month. In the month they take vacation, they will receive an additional R$1.000 in constitutional compensation, on which an additional R$300 in pension will be added.
In December, when you receive your 13th salary, the discount will be R$900 again, totaling two extra pension amounts throughout the year.
What if the payer does not make the extra payment?
If the court ruling determines that the pension should be paid to the 13th salary and one third of vacation, but the debtor not making the additional payment, it is possible to enter with food enforcement action.
In this type of legal collection, the amounts due may be updated, increased by fines and, in extreme cases, even result in civil arrest of the debtor, as provided for in the Article 528 of the Code of Civil Procedure.
Failure to pay these amounts may constitute partial default, since the maintenance obligation covers all salary-related payments.
Thus, the Court understands that omission during these periods also violates the right of the person receiving alimony to the full extent of the resources judicially determined.
The importance of reviewing and adapting the court decision
In cases where the original decision does not specify the inclusion of the 13th salary and one-third of vacation in calculating the pension, the beneficiary party may request judicial review.
This update is important to adapt the pension to changes in financial reality of the payer and guarantee justice in the annual transfer of values.
Furthermore, the understanding consolidated by the STJ serves as a reference for lawyers, judges and public defenders, who have applied the rule as a standard of calculation in new food processes.
The goal is standardize the interpretation and ensure that the pension covers all of the worker's remuneration payments.
Do you think it's fair that the 13th-month salary and vacation pay are included in the pension calculation? Or do you think this should depend on each case? Leave your opinion in the comments—we'd love to hear from anyone who's experienced this situation.
I'm receiving temporary child support for my two children with schizophrenia. This year, they added child support to my paycheck.
He pays the 13th salary, also with an income tax deduction, and he doesn't pay for vacations. I'm poor, and my children's father is in paradise. I can't work because I have to take care of them, and he doesn't pay me any child support.
However, I would like to know what rights I and my children have?
Thank you!