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Problematic alimony in gringo relationships

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  • #211296

    doctorlili
    Member

    I have learned a whole lot about the economical implication of marital relationships, in the past 2 years. And on related threads we have worked some things out, on this one I like to work out the question of alimony and what to do about it. In my view alimony poses a particularly problematic issue in relationships involving gringos and brasileiras especially if she is of lower means even in Brazil.
    Just in case you do not know, marital relationship in Brazil means marriage as well as união estavel. The latter comes about by living together or making a life together, in unknown ways. Typically you would only know that there was a união estavel when she sues you for dissolution of união estavel asking for certain property and alimony. I think any man ignores that risk at his own peril.
    Let me make clear that I am excluding child support from the present discussion. If you or I have a common child with our brasileira, then the child has certain rights and we have a duty for the child … there are issues, possibly discussed in yet another thread.
    Here it is about alimony.
    I have begun investigating this issue in depth here: Alimony Law in the Brasilian Civil Code, and I won’t just copy and paste the full text again. Suffice it to say that Brazilian new civil code (novo Codigo Civil) of 2002 contains one article which is the key and cornerstone of the problem:
    Art. 1.694. Podem os parentes, os c√¥njuges ou companheiros pedir uns aos outros os alimentos de que necessitem para viver de modo compatível com a sua condi√ßão social, inclusive para atender √†s necessidades de sua educa√ßão.
    So, the problem is what exactly is it that the alimony right guarantees? And what is the “condi√ßão social”?
    Under one theory, expressed in a higher court ruling spoke of “… para que ele [a alimentada] recuperasse a condi√ßão econ√¥mica que detinha durante o relacionamento.“, i.e., under this theory the ex would have a right to maintain her standard of living that she had with you during your relationship. Now Gringodude jumped right in with his theory that therefore you marry someone with money and job, but really this only gives you a relative protection. Because if she makes a case that whatever she had with you is now her standard of living that she has a right to maintain, if you have any decent income in a developed country outside of Brazil, you are under this theory on the hook for potentially life-long duty to supplement her income.Squiddie2012-05-24 10:51:17

  • #211297

    Gianni
    Member

    That’s why you marry a female with her own money and job. And, not be a loser failing yourself by marrying a lower class blonde…

  • #211298

    doctorlili
    Member

    Yes Gringodude, and still you can end up in crap. Just hang in there. I’m not finished.

  • #211300

    Gianni
    Member

    As long as she is working and making more than you are and your property or financial means is somewhat a mystery you should be fine. You should sue her for alimony if you want to project any form of defence.

  • #211304

    doctorlili
    Member

    Gringodude, I know you love simplification and poking your nose at people. Are you saying you are a loser by yourself and you are the one who hitches a ride through life on your brazilian wife?
    So may be this is not an issue for Gringodude, but instead Gringodude’s wife should worry about it. However, it is an issue for me, and it does not so much depend on the status of the girl, it depends on my achievements. I have the exact same issue with any girl I would marry in the U.S. or in Europe. However, the laws in U.S. and Europe are so that the doctrine of maintained standard of living has been revised or can be moderated by pre-nup. This is what I am dealing with here.
    And besides, Gringodude, I am not the only one who goes for a nice girl who just happens not to make my income. This is not at all unusual. I would bet that at least half of the people here fall in this category.Squiddie2012-05-24 10:57:31

  • #211306

    Gianni
    Member

    No, I do not ‘hitch a ride’ anywhere, I just have my sensible involvement with my marriage. I would raise the bet to almost 99% of people on here or in Brazil who are married do so because of infatuation and not love. Every other week there is a chump who claims to have found the love of their life ‘online’. I’m not against it in any form it just progresses its way into failure and another settlement.
    Also, it’s not of a problematic nature to possess your own achievements. It is however to openly share them when in fact you are blinded by emotion that locks up your logic.
    I just have no sympathy for this recurring type of situation, people need to learn, might you agree?

  • #211308

    sven van ‘t Veer
    Participant

    As in everything in Brazilian law, two principles apply, the principle of human dignity and the principle of reasonability.
    It’s totally reasonable if a socker player, married at 17, starts making big bucks at 18, and divorces at 23, having a wife with no education and a kid at the swiss school, forks over 100K for the kids “to maintain the same standard of living” without the ex actually having to work.
    On the other hand, someone making 1K per month cannot be expected to maintain the child at the same social level, if there is any social level to speak of. The wife will have to work and the provider will have to at least guarantee the bare minimum (human dignity).
    Now an example of no children. A couple has been married for 30 years, hubby makes big bucks (30K) and decides to swap the old fusca for a newer model Ferrari. The wife is a typical upper class, 50 year old housewife, that can’t even boil water without the empregada. In this case it’s totaly reasonable that the guy forks over 10K to maintain her standard of living at a similar level.
    If both work, it’s not very comon the ex wife will recieve alimony, even if she makes quite a bit less.
    There is no fixed rule. Each judge applies his “juizo de valores” on each case.

  • #211309

    hoganti
    Member

    just an aside, but what the hell does this mean….
    “I just have my sensible involvement with my marriage.”

  • #211322

    doctorlili
    Member

    People need to learn, and that is exactly what this is about.
    The men’s rights groups are full with horror stories. There is some arguments about what is reasonable, but it seems to me that the laws everywhere are changing to put more responsibility for every person to (a) make their own income and (b) move in the social status ladder to live a lifestyle they can afford out of their own means.
    This is such a big issue, with all sides of the argument. I suppose my point for this particular thread is somewhat limited as to
    (a) assess the what is common, assess the risk of being on the hook for how much for how long (and thanks Sven for having answered a great deal about it.) and then more specifically
    (b) come up with workable avenues to put up some pre-nuptial protection which has a reasonable chance of being considered because it is not unconscionable and has a basis of fairness.
    In my view, pre-nups are hugely important for any couple at any age to set a status of what they believe is fair. Such a declaration may not hold back a fiercely litigious spouse from asking for whatever, but it provides some basis that a judge will consider. And the more reasonable and reasoned it is, the higher is its chance to be taken seriously in the mind of the judge.Squiddie2012-05-24 13:17:17

  • #211331

    doctorlili
    Member

    So, here in a nutshell the problem:
    Gringo with a certain intrinsic standard of living (i.e., a standard that he has created and can maintain for himself and those who are with him) enters marital relationship with a woman who has a much lower intrinsic standard of living.
    Examples can be: US surgeon and US nurse or secretary, or US engineer and Brazilian teacher, or of course US business man and Brazilian receptionist. And here at gringoes.com, we will focus on Brasileira, whether receptionist, teacher, or scientist, or just daughter of a father. Rarely it will be the rich daughter of a rich father richer than the Gringo. It may however be the rich daughter of the rich father by Brazilian standards.
    The latter would make me very worried actually. Because there are those who are happy to have a small place in low-middle class suburbs, and there are others who demand a minimum shopping allowance that they need to be happy.
    The worst case, perfectly compatible with the Brazilian Civil Code, would be: a marital relation would boost the woman to the man’s standard of living and henceforth he would be responsible to maintain her new standard of living regardless of her being in any other way associated with him. This means you would become responsible to maintain any woman you touch with anything but a one-night-stand, and you would be responsible for the rest of her life, and your children would be responsible for her should you die before [Art 1.700].
    Example: your intrinsic value is US$ 100,000 gross annual income, hers is R$ 24,000. After being associated with you for 1 year, she automatically assumes the right for US$ 100,000 – R$ 24,000 in annual support, which is US$ 88,000 per year or US$ 7,333 per month, or, even if you give only half of that it would be US$ 3,666 per month. Now try your luck with a second and third girlfriend …
    If the regime de bens is an issue for some, this alimony issue is far worse. Especially if the alimony comes on top of having to chip out half of your value for which you worked your ass off (and which you saved by making her upset saying “no” to her requests for purchasing or spending otherwise money in convenience items.)
    Surely I am painting a dark and alarmist picture. But I believe that this picture is the grotesque result of the Civil Code when interpreted without additional limits. And so my question is: what are such additional limits?
    With child support, one can argue that the code says that both parents are responsible to do their share [Art 1.703]. And child support should belimited in some way by the child being grown up. However, the Civil Code, talking about alimentos mixing both spousal support and child support, does not even set a temporal limit on child support. I think, this means, that a lazy bum can demand support for life. And by extension, this means that if my Brazilian ex raises my child from whom she alienates me as a lazy bum, then I and after me my other children would remain responsible for support. I know it is ridiculous, I am just connecting the dots.
    I am interested in knowing the limits and what constitutes such limits other than claims to “common sense” or reference to the word “reasonable” or “just” “fair” “equitable” or whatever other blurry words might be used in these arguments.Squiddie2012-05-24 14:20:38

  • #211340

    doctorlili
    Member

    A good piece from one attorney’s blog:
    Pensão Alimentícia: par√¢metros para sua fixa√ßão
    he acknowledges an issue and describes his view. Not sure how much it is shared. And even following his view, in the example given, I still don’t think it is fair because she still gets a free ride.
    Even this writer concludes with the message that I find grim:
    “Isso porque a manuten√ßão do status social está expressamente contemplada no art. 1.694 do Código Civil, não sendo lícito que uma pessoa inseridaem um contexto social elitistaseja privada da manuten√ßão do seu padrão de vida.”
    The words “inserida” and “elitista” are beautifully selected to describe the problem. So he says the law would still argue that the right for maintaining an elitist status even after breaking up with your source of such status is inalienable.
    I find this crazy. German law was like this and changed in 2008. What are the vibes from the Brazilian legislation?Squiddie2012-05-24 15:15:02

  • #211341

    sven van ‘t Veer
    Participant

    Never ever can someone pay more than 33% of his income in alimony.
    Wifes, if they get any, usually get no more than 10 or 15%. 33% is wife and several kids.
    Child support is only due for minors, except when they are in university, untill 24 years of age: São devidos os alimentos quando quem os pretende não (…) pode prover, pelo seu trabalho, √† própria manten√ßa.
    The logic is that lazy bums can work, so have no right to alimony.

  • #211343

    doctorlili
    Member

    Thanks Sven, as always. Would you have a reference to those 10% and 33% rules?
    I know I am flooding this thread as I work through this. My goal is to include clauses in the pre-nup which acknowledge the inalienable right of support but instead set a basis for its reasonable assessment of need by providing an explicit interpretation of what the law states. My strategy is: is a pre-nup sets a standard of a reasonable interpretation of the law, then a judge will have a hard time not to follow that standard in some meaningful way.
    So, instead of saying there is no right, or fix it at some fixed value, I’m thinking of specifying what constitutes need, and that she has a responsibility. I am trying to establish an idea of intrinsic value. And as we move along, set up a pension fund which will be taking the responsibility for this by establishing or supplementing her own ability to support her own needs.
    As the rich gringo, you will never be able to make an argument that you can not afford it, so the key is to specify what constitutes needs and what constitutes her own resources.
    And I would also include the fact that this clause will be updated over time to reflect future situations. I plan on reviewing the financial constitution at a minimum every 2 years (initially one). That way, we can deal with it over time, since it is a difficult task.Squiddie2012-05-24 14:59:36

  • #211345

    doctorlili
    Member

    Thinking of my woman, I can also say that it helps to know she loves sex … she would not be able to live alone for very long … which by Art 1.708 is a hard stop on any obligation. So, save some unforeseen health issues, this is the one thing that makes me most relaxed in my case (plus knowing that she is not litigious.)Squiddie2012-05-24 15:03:13

  • #211353

    sven van ‘t Veer
    Participant

    No rules, jurisprudence.

  • #211356

    celso
    Member

    [QUOTE=Squiddie]So, here in a nutshell the problem:

    Gringo with a certain intrinsic standard of living (i.e., a standard that he has created and can maintain for himself and those who are with him) enters marital relationship with a woman who has a much lower intrinsic standard of living.

    Examples can be: US surgeon and US nurse or secretary, or US engineer and Brazilian teacher, or of course US business man and Brazilian receptionist. And here at gringoes.com, we will focus on Brasileira, whether receptionist, teacher, or scientist, or just daughter of a father. Rarely it will be the rich daughter of a rich father richer than the Gringo. It may however be the rich daughter of the rich father by Brazilian standards.

    The latter would make me very worried actually. Because there are those who are happy to have a small place in low-middle class suburbs, and there are others who demand a minimum shopping allowance that they need to be happy.

    The worst case, perfectly compatible with the Brazilian Civil Code, would be: a marital relation would boost the woman to the man’s standard of living and henceforth he would be responsible to maintain her new standard of living regardless of her being in any other way associated with him. This means you would become responsible to maintain any woman you touch with anything but a one-night-stand, and you would be responsible for the rest of her life, and your children would be responsible for her should you die before [Art 1.700].

    Example: your intrinsic value is US$ 100,000 gross annual income, hers is R$ 24,000. After being associated with you for 1 year, she automatically assumes the right for US$ 100,000 – R$ 24,000 in annual support, which is US$ 88,000 per year or US$ 7,333 per month, or, even if you give only half of that it would be US$ 3,666 per month. Now try your luck with a second and third girlfriend …

    If the regime de bens is an issue for some, this alimony issue is far worse. Especially if the alimony comes on top of having to chip out half of your value for which you worked your ass off (and which you saved by making her upset saying “no” to her requests for purchasing or spending otherwise money in convenience items.)

    Surely I am painting a dark and alarmist picture. But I believe that this picture is the grotesque result of the Civil Code when interpreted without additional limits. And so my question is: what are such additional limits?

    With child support, one can argue that the code says that both parents are responsible to do their share [Art 1.703]. And child support should belimited in some way by the child being grown up. However, the Civil Code, talking about alimentos mixing both spousal support and child support, does not even set a temporal limit on child support. I think, this means, that a lazy bum can demand support for life. And by extension, this means that if my Brazilian ex raises my child from whom she alienates me as a lazy bum, then I and after me my other children would remain responsible for support. I know it is ridiculous, I am just connecting the dots.

    I am interested in knowing the limits and what constitutes such limits other than claims to “common sense” or reference to the word “reasonable” or “just” “fair” “equitable” or whatever other blurry words might be used in these arguments.[/QUOTE] Up here in the NE the child support issues are handled at the Forum. A judge listens to both side and decides what is fair. A German neighbor fathered a child and was not present at the hearing as he was in Germany. The unemployed young mother was awarded 2,000 reais a month at that hearing. The German then was forced to hire a local attorney to request another hearing. After explaining that he had no job (true) in Germany, the amount was reduced to about 300 reais a month. This took a bunch of legal fees etc. I’ve been told it is good to go in and offer in hand…an act of good faith not very common in Brazil.

  • #211358

    sven van ‘t Veer
    Participant

    It’s even better to not wait for them to ask for child support, but to offer it.

  • #211361

    celso
    Member

    [QUOTE=sven]It’s even better to not wait for them to ask for child support, but to offer it.[/QUOTE] Yes Sven, Pay what is reasonable, even during pregnancy, get receipts, and if a hering is scheduled go in with receipts and offer in hand…

  • #211371

    doctorlili
    Member

    Interesting legal historical review, a bit dated:
    Marriage, Cohabitation, and Intrahousehold Bargaining: Evidence from Brazilian Couples
    Legislation regarding property division and alimony following then relationship dissolution was, however, much slower to change. Jurisprudence in these areas essentially followed an outdated Civil Code (1942) and consistently denied cohabitants alimony and property division rights. It was only in 1988, with the new Federal Constitution (Article 226, paragraph 3), that new guidelines were set. In its text, the Constitution universalized the spirit of the (topic-speci c) laws that ruled the relation between the State and cohabiting couples, establishing that stable consensual unions should be recognized as a legal family entity “for purposes of protection by the State“. Additionally, religious marriages, considered until then
    as informal unions for legal purposes, were granted the recognition by the State – provided that they were con rmed in a “Public Registry Oce” in accordance with Law 6015/1973.
    In the context of individual rights and obligations between partners, the Constitution had distinct e ffects in terms of property division and alimony. Jurisprudence on property division, for example, adopted the Federal Supreme Court’s Recommendation 380 (Sumula 380 ” of the Supremo Tribunal Federal) to the cohabitation context. Until then, Sumula 380 exclusively ruled rights over property after commercial partnership break up. In practice, it meant that, starting in the early 1990’s, cohabitants were given the right over their partner’s property when able to prove collaboration on its accumulation.
    In the context of alimony/maintenance rights, the Constitutional text was ineffective. Jurisprudence held that cohabitation would not yield maintenance rights to the cohabitants under any circumstances, as it had before 1988. The justification for this was, according to Ribeiro (2002) and Branco (1994), that the Constitution had only established the responsibility of the State with respect to cohabitants, but not the responsibility of one partner to the other in the context of maintenance. Pessoa (1997) and Matielo (1998) further emphasize that, although it had recognized cohabitations as a family unit, “consensual union” and marriage were still distinct entities. In effect, the Constitutional text suggested the necessity of legal facilitation to convert such an arrangement into marriage. In the understanding of the Brazilian courts, this meant that maintenance obligations were only possibly derived from biological paternity/maternity and formal marriages. Post-dissolution alimony rights and obligations pertinent to the latter should, therefore, not be extended to the former. Based on this argument, alimony petitions were normally dismissed without a hearing, and state-level Superior Courts usually corroborated these decisions.
    Diverging from the status-quo, the Law 8971, of December 1994, introduced alimony rights to cohabitants ful lling certain criteria. It worked as an extension of the applicability of the Law 5478/1968 (“Alimony Law”) to the dissolution of cohabitations. The Law 8971/1994 established that the cohabitant partners of divorced, legally separated, and widowed individuals could require maintenance/alimony upon the relationship’s dissolution. Alimony requests would be valid if the cohabitation were publicly known and had endured for five years or more(waived in the event of common o spring). In other words, the partner requesting alimony must prove with the testimony of neighbors, building managers, or renters, the existence of a stable union for more than 5 years. Alternatively, the registration of a child in the name of both partners would be sufficient to waive the duration requirement. The beneficiary has the right until commencing a new (stable) relationship and so long as they can prove financial necessity – almost invariably de ned by courts in terms of potential earnings (or the individual’s stock of human capital).
    The alimony amounts were established by a judge according with the debtors’ financial capabilities (normally 25 to 33% of monthly income converted into minimum wage units for indexation purposes). […]
    Most importantly, the new law also established a process for the alimony request (which reduces the transaction cost) and strong enforceability mechanisms. First, individuals requesting the ex-partner payment of maintenance could make use of a lawyer assigned by the Judicial System (free of charge). Second, the expected litigation duration was dramatically reduced, with the possibility of provisional payments before the nal ruling. Third, the law made the information about the legal apparatus surrounding alimony rights publicly available. Finally, enforcement was explicitly speci ed in the Civil Process Code – failure to meet the required monthly payment, results in imprisonment.
    As it induced an exogenous shift in the balance of power within households (cohabitant couples), mostly favoring women, the implementation of Law 8971 is explored as a “natural-experiment” in the empirical exercises below.

    The interesting items are:
    Alimony established to protect the interest of the state!
    Alimony awards between 25% and 33% of his income, and his income being cited as the main determinant (salario minimo only used as an inflation index to raise the debt, not to limit it by being an index of actual need.)
    The former 5-year rule, which would mean that if there is any after-effect of that rule, I could be better off to postpone the whole thing with declaring an União Estavel, because it could make me liable for eternal alimony payments closing the ability to defeat the whole União Estavel pleading from the start. This is a tough bet to make: risk comunhão de bens and alimony if litigation occurs, or risk only alimony if we break up without litigation?
    Where did the former legal 5-year rule go? How did it become an informal 2-year rule, vanishing altogether as a rule?Squiddie2012-05-24 18:55:20

  • #211373

    doctorlili
    Member

    Lei No 8.971, de 29 de dezembro de 1994.
    Question: is this still on the books or repealed by the new Civil Code? I presume yes, revoked, and with it went the 5-year rule.
    Art. 1¬∫ A companheira comprovada de um homem solteiro, separado judicialmente, divorciado ou vi√∫vo, que com ele viva há mais de cinco anos, ou dele tenha prole, poderá valer-se do disposto na Lei n¬∫ 5.478, de 25 de julho de 1968, enquanto não constituir nova união e desde que prove a necessidade.
    Parágrafo √∫nico. Igual direito e nas mesmas condi√ß√µes √© reconhecido ao companheiro de mulher solteira, separada judicialmente, divorciada ou vi√∫va.
    Art. 2¬∫ As pessoas referidas no artigo anterior participarão da sucessão do(a) companheiro(a) nas seguintes condi√ß√µes:
    I – o(a) companheiro(a) sobrevivente terá direito enquanto não constituir nova união, ao usufruto de quarta parte dos bens do de cujos, se houver filhos ou comuns;
    II – o(a) companheiro(a) sobrevivente terá direito, enquanto não constituir nova união, ao usufruto da metade dos bens do de cujos, se não houver filhos, embora sobrevivam ascendentes;
    III – na falta de descendentes e de ascendentes, o(a) companheiro(a) sobrevivente terá direito √† totalidade da heran√ßa.
    Art. 3¬∫ Quando os bens deixados pelo(a) autor(a) da heran√ßa resultarem de atividade em que haja colabora√ßão do(a) companheiro, terá o sobrevivente direito √† metade dos bens.
    Art. 4¬∫ Esta lei entra em vigor na data de sua publica√ßão.
    Art. 5¬∫ Revogam-se as disposi√ß√µes em contrário.

    So, I am beginning to think whether it would be more wise to notarize a “declara√ßão de non-existencia de uma união estavel”?Squiddie2012-05-24 19:21:49

  • #211377

    doctorlili
    Member

    Really, I am beginning to think that would be the right approach. It would declare that we contemplate a life together but that at the present time we have not been clear about this. That I have supported her as a matter of dignity but that she understands that from that support does not result in any rights for her continued support, should we not stay together. I can write in what I already promised, that in case we do break up, I offer to support her for 6 more months. We deny the key facts of união estavel, não tenia sendo contínua e duradoura e estabelecida. We set a time (3 years) by which this would be converted into a união estavel or casamento. We further state that the regime dos bens de nossa allian√£ sera o que da separa√ßão total de bens. Things like that.
    Now it is beginning to be clear enough that involving a drafting attorney would be useful. But who knows an attorney who would catch on to my innovative ideas?Squiddie2012-05-24 19:30:13

  • #211382

    sven van ‘t Veer
    Participant

    You can’t write up a document that you are not in a união estável. As I stated, it’s a factual union, what matters is what a person can prove at a certain moment in time.

  • #211384

    Anonymous

    Your relationship seems to be more trouble than it’s worth.

  • #211386

    doctorlili
    Member

    Enw10, it has nothing to do with this particular relationship. Its something I would do with anyone. Never again do I want to run the risk of being the defendant to claims that arise out of my relationship with anyone other than what I expressly agree to. And frankly, you should do be concerned too.
    Now Sven, I can write any document that declares an understanding. It may not have 100% weight, but if done right, it can influence things. Any 2 parties can write a contract about anything that is not unlawful and affects those 2 parties only. No guarantees, just an expression of mutual understanding.
    The document I am thinking to write is one that denies the criteria of the União Estavel and denies its existence in the past and in some small amount of foreseeable future, sets up a declaration of will regarding my care for her as well as the anticipated separation of assets should such a union factually arise.
    So, União Estavel is defined by some criteria, and by mutually agreeing that some specific criteria are not in fact present, the claim of União Estavel and resulting rights against me will be reduced in viability. The question is what are the hard criteria? There are no hard ones, or are there? We know now what Art. 1.723 says. Question is what other rules are still practically applied? And does Lei 8.971/94 have any remaining after-effects?Squiddie2012-05-24 20:51:15

  • #211388

    doctorlili
    Member

    Interesting article here: União estável sob os √¢ngulos da informalidade e da prova
    I don’t fully comprehend yet what they are saying, but it seems very relevant. It’s about the issue of determining when it begins to be stable. It’s funny I dig in all this Portuguese stuff and sometimes get it all wrong, and then still I feel empowered going through this.
    It has already teased out a lot of what I need to do. (And a whole lot of people should be doing too …)

  • #211390

    doctorlili
    Member

    Here is a pretty good overview on união estavel:
    Os casais que vivem juntos têm direitos e deveres.
    It describes how the 5 year rule of 1994 was removed in 1996 already and now we have novo codigo civil anyway.
    However, being the man with the bens, I always find it funny when they say “direitos e deveres” (rights and duties) because really it means one has potential rights the other potential duties. There is a lot of euphemism used in these descriptions, including the gender neutrality of the language which belies that the beneficiaries are almost exclusively women, who do not seem to have any deveres in this game.
    Again, this is not at all about my girl. She is not one of those who would litigate. Not at this time anyway. But I think any self respecting man should create his own constitution of matrimonial economy.Squiddie2012-05-24 21:18:13

  • #211394

    sven van ‘t Veer
    Participant

    Squid, the rules about marriage and união estável are “de ordem p√∫blica” you can’t contract them away. The Pacta sunt servanda rules of us law don’t apply here. Sure you can write any document you wish. You can write down you don’t live together to form a family, it’s just not worth the paper it’s written on (and even less the money you pay the cartorio) as its easy to prove that yes, you do in fact live together and form a family. All that’s needed is some pictures and some neighbours testify that yes, you do live together as a family.
    One just cant interpret the Brazilian law the way you do. There is no positivism in Brazil. The whole system is based on principles and general clauses, creating means for a judge to decide what is just and no just deciding what is legal.

  • #211403

    doctorlili
    Member

    I will not desist This is a matter of principles. In any future relationship and any country I will write my own rules. Not to escape from what is just, but to define it. I have contacted the one blogging attorney in Belo Horizonte to see what he can do.

  • #211405

    doctorlili
    Member

    União estável e contratos de namoro no Código Civil de 2002
    Proliferam novas formas contratuais de quem não deseja se enquadrar na união estável, como os contratos de namoro, cuja validade √© relativa e sucumbe ante preceitos de ordem p√∫blica indisponíveis e perante os terceiros de boa-f√©.

  • #211467

    doctorlili
    Member

    I am onto something, the right keyword gets us further:
    Contrato de namoro vira febre nos escritórios de advocacia
    […] A jurisprud√™ncia sobre esses casos não está formada. A Justi√ßa ainda está estabelecendo padr√µes, que devem se tornar a refer√™ncia de como julgar esses processos. ‚ÄúCaráter só se v√™ na hora da separa√ßão. Muita gente fica com raiva no fim do namoro, e tenta entrar na justi√ßa para tirar uma casquinha‚Äù, afirma Daniela.
    Contrato precisa ser renovado
    De acordo com Adriano Ryba, presidente nacional da Associa√ßão Brasileira dos Advogados de Família e advogado de família em Porto Alegre, o termo ‚Äúcontrato de namoro‚Äù não √© o mais adequado. Ele adota ‚Äúcontrato de inten√ß√µes afetivas recíprocas‚Äù, que registra o momento do casal na rela√ßão.
    Ryba cita alguns elementos que indicam que o relacionamento está evoluindo e que podem ser utilizados como provas, num futuro processo judicial: morar junto, colocar o parceiro como dependente no plano de sa√∫de, aquisi√ßão conjunta de algum bem ou investimento, contrato de aluguel do imóvel, testemunho de amigos ou vizinhos, correspond√™ncia no endere√ßo comum, fotos ou conta conjunta.
    Mesmo a coabita√ßão parcial ‚Äì passar alguns dias da semana morando na casa de um dos parceiros ‚Äì pode ser interpretado pelo juiz como caracteriza√ßão da união estável. ‚ÄúEsse tipo de contrato de inten√ß√µes recíprocas serve principalmente para pessoas de mais idade, que t√™m patrim√¥nio já de outras rela√ß√µes e querem come√ßar um novo compromisso livre de preocupa√ßão.‚Äù No escritório de Ryba, há parceiros que assinam a contragosto. ‚ÄúO outro acaba aceitando por acusa dos atritos‚Äù, afirma.
    √â importante que fique claro que o contrato de namoro não √© uma prote√ßão eterna dos bens dos c√¥njuges. √â uma prova em juízo de que, no momento em que foi assinado pelas partes, não havia união estável, mas isso não quer dizer que ela não possa se desenvolver depois.Portanto, √© preciso renová-lo de tempos em tempos. ‚ÄúA inten√ßão √© manifestada por escrito de que não há depend√™ncia econ√¥mica entre eles e ainda não há inten√ßão de formar família. O contrato √© uma fotografia da rela√ßão naquele momento‚Äù, afirma Ryba. Se o casal passou a viver como casados posteriormente e adquiriu bens, o contrato não se sobrep√µe √† lei. ‚ÄúQuem está namorando pode querer que o relacionamento evolua e o contrato não terá for√ßa para impedir esse fato.‚Äù

    This “depend√™ncia econ√¥mica” is something to really watch for. How can it be that taking care of someone out of free will turns into a duty and a legal trap? But that too can be addressed. For example, by stating in the contract that my taking care of her is not creating any form of dependence and that she has the capacity to work and to educate herself to increase her inherent social condition in free choice, and whatever choice she made is her responsibility and establishes her “condi√ß√µes sociais”, things like that. Of course, I don’t want it to be humiliating, but calling a spade a spade is not a bad exercise.
    Contrato de namoro previne risco de casamento
    Jurisprudence:
    A 9¬™ C√¢mara de Direito Privado do Tribunal de Justi√ßa de São Paulo julgou recurso em uma ‚Äú a√ßão movida a fim de se reconhecer a alegada união estável havida entre as partes, para fins de direito √† partilha de bens e alimentos‚Äù. A c√¢mara confirmou oa senten√ßa de primeiro grau e negou provimento ao recurso da autora.
    O desembargador relator do caso Grava Brasil entendeu não haver esse tipo de união ‚Äúcomo bem apontou o Juízo de origem, nas raz√µes de decidir: “Verifica-se que os litigantes convencionaram um verdadeiro contrato de namoro, celebrado em janeiro de 2005, cujo objeto e cláusulas não revelam √¢nimo de constituir família‚Äù.
    A defesa da autora alegou em seu recurso que a rela√ßão, de quatro anos, acabou por causa do temperamento agressivo do ex-namorado. Argumentou que eles t√™m um filho, al√©m de citar as provas, como fotos do casal e do relacionamento ser de conhecimento p√∫blico. Logo, a autora teria direito a partilha de bens e fixa√ßão de alimentos.
    Pesou na decisão do desembargador o fato deles só terem vivido juntos durante 6 meses. No mais, viviam em casas separadas, como ficou provado, só dividindo o mesmo teto durante os finais de semana. O desembargador tamb√©m entendeu que a autora não depende economicamente do ex-namorado, pois já trabalhou anteriormente, mostrando ser apta ao trabalho e por fim, utilizou-se do contrato de namoro como meio de prova.
    Em outra decisão, dessa vez do Tribunal de Justi√ßa do Rio de Janeiro,o desembargador Marcos Alcino Torres, relator do recurso, constatou que havia um contrato particular de união livre, assinado pelas partes, que sela qualquer possibilidade de partilha de bens.

    So, we are getting somewhere. Still the economic dependency criterion is a dicey issue which I have to address.
    Sven is not alone in still doubting the viability of such instruments:
    Ainda assim muito se especula sobre a legalidade de um contrato de namoro e sua eficácia. A advogada Renata Mei Hsu Guimar√£es não v√™ sentido em tal contrato, acha uma ferramenta muito precária, e não recomenda ao cliente. Em casos semelhantes ela opta pelo ‚Äúpacto de conviv√™ncia‚Äù, o qual pode ser feito durante o namoro e continua válidocaso o relacionamento evolua para uma união estável.
    So there is our next keyword:
    O Contrato de Convivência
    […] O Contrato de conviv√™ncia √© uma moda que vai pegar. Já pegou nos grandes centros urbanos do país. […] Este contrato √© algo, na minha opinião, que pode revolucionar a rela√ßão entre as pessoas, torná-las maduras, responsáveis, conscientes e at√© mesmo fi√©is.
    RB: Fiéis? O Sr. acha mesmo que um simples contrato é capaz disto tudo?
    […]
    Dr. Gustavo: Eu trabalho na área de família há quase dez anos e não há nada mais nocivo √†s pessoas que a disputa pelo patrim√¥nio, pelos bens. Quer uma coisa para acabar com uma família inteira? Eu te digo: Um inventário de um sujeito que falece deixando muitos bens. E vou al√©m, basta um √∫nico veículo velho caindo aos peda√ßos e dois herdeiros para que se deflagre uma guerra judicial sem precedentes. Os casados tem seu regime estabelecido antes do casamento. Mas e aqueles que vivem juntos? Qual seu regime, quando come√ßaram a união, o que √© de quem? Não há nada pior que um um homem ou uma mulher arquitetando maneiras de colocar no seu imposto de renda a renda do outro. (risos) Com esta brincadeira quero mostrar a import√¢ncia da preven√ßão, comparando o contrato de conviv√™ncia ao testamento, que √© outro instrumento jurídico poderosíssimo disponível √†s pessoas que pode evitar danos incalculáveis. Veja bem, não √© um contrato, em si, que pode revolucionar a vida das pessoas, mas o ato de faz√™-lo, muito embora o que ficar estabelecido nele se torne lei entre as partes. Nós estamos em um novo mil√™nio, onde as pessoas aprenderam a usar preservativo só depois que milhares morreram de Aids, numa √©poca onde aprendemos a usar cinto de seguran√ßa depois de acidentes, mortes e multas caríssimas, em especial as multas caríssimas…

    E há algumas
    Modelo de Contrato de Convivência
    E mais:
    A união estavel e o contrato de conviv√™ncia no novo codigo civil.
    A vontade dos conviventes, neste aspecto, deve prevalecer. Deve-se deixar ao arbítrio do próprio casal o direito de estabelecer as regras que deverão ser observadas em uma eventual partilha patrimonial e guarda de filhos, bem como quest√µes relativas a pensionamento. No dizer de √Ålvaro Vila√ßa Azevedo, o condomínio no patrim√¥nio somente prevalecerá em caso de não ter sido nada pactuado entre os conviventes. Caso não seja essa a vontade dos conviventes deverão eles pactuar de forma diversa, pela via do contrato de conviv√™ncia. Portanto, as normas inseridas no texto da lei civil são de caráter exclusivamente supletivo.
    Em conclusão, resta claro que a lei somente deverá regulamentar os casos em que não tenha sido op√ßão do casal estabelecer regras que regulem a conviv√™ncia, ou, no caso da filia√ßão, tenham sido estabelecidas conven√ß√µes que não atendam aos interesses da prole.

    E mais, e mais:
    Todo lo que necesita saber sobre los Acuerdos o Contratos de Convivencia
    At this point it is no longer a question of “if” but “how” and “when”.
    I just decided I make all of this palatable by writing into the contract as my agreement to pay the monthly sustenance at this time plus 6 months after the end. And that in return she agrees that this is for her convenience and specifically allowing her freedom to work or get education, and that therefore, my act of supporting her is not creating a new dependency and is not turning into a right to have this status maintained indefinitely after the end of our relationship. This is reasonable and I feel quite good now that when done with all due respect to the law and the partner, it can be an item well worth it creating peace, not only of the mind.Squiddie2012-05-25 15:51:56

  • #211476

    Anonymous

    [QUOTE=Squiddie] And frankly, you should do be concerned too. [/QUOTE]
    No, my husband should be. I stay home with our kids. Imagine the child support and alimony he’d get hammered with 😉

  • #211477

    doctorlili
    Member

    Contract law, referenced in the scholarly PDF article “A união estavel e o contrato de conviv√™ncia no novo codigo civil.”:
    Art. 421. A liberdade de contratar será exercida em razão e nos limites da fun√ßão social do contrato.
    Art. 422. Os contratantes são obrigados a guardar, assim na conclusão do contrato, como em sua execu√ßão, os princípios de probidade e boa-f√©.
    Art. 423. Quando houver no contrato de adesão cláusulas ambíguas ou contraditórias, dever-se-á adotar a interpreta√ßão mais favorável ao aderente.
    Art. 424. Nos contratos de adesão, são nulas as cláusulas que estipulem a ren√∫ncia antecipada do aderente a direito resultante da natureza do negócio.
    Art. 425. √â lícito √†s partes estipular contratos atípicos, observadas as normas gerais fixadas neste Código.
    Art. 426. Não pode ser objeto de contrato a heran√ßa de pessoa viva.

    The paper refers to general contract law because is is referenced specifically in Art. 1.725.
    Art. 1.725. Na união estável, salvo contratoescrito entre os companheiros, aplica-se √†s rela√ß√µes patrimoniais, no que couber, o regime da comunhão parcial de bens.
    Using this word explicitly opens this subject matter of family law (which may well traditionally be a matter of ordem p√∫blico) up to contract law, and with Art 425, even unusual contracts are possible.

  • #211478

    doctorlili
    Member

    [QUOTE=enw10]
    [QUOTE=Squiddie] And frankly, you should do be concerned too. [/QUOTE]No, my husband should be.¬† I stay home with our kids.¬† Imagine the child support and alimony he’d get hammered with ;)[/QUOTE]
    There you said it. Sorry for the mixup. But I couldn’t agree more with you now.

  • #212283

    Bella 777
    Member

    I know women who save every single hairdresser, spa and restaurant receipt to have proof of their spending habits.
    But as it says up there – you can’t have her sign to give up all rights beforehand. Also Salvo contrato escrito, etc… I think has to do with assets, not alimony.

  • #263726

    sven van ‘t Veer
    Participant

    [QUOTE=Richard V]

    Squidie I admire your tenacity, but I have to agree withSven, in that we can`t write up a list of the established laws of the landwe choose to opt out of. Wish we could, but I don`t think we can.

    [/QUOTE]

    If you could, why bother having laws? The law states you can’t kill someone. I don’t like the law, so I should just be able to “opt out”?

    [QUOTE=Richard V]

    Aside, connecting alimony and childcare, are you saying Sventhat when having two kids, and alimony on top, these payments can never amountto more than 33% of a person`s net income, the child support and alimonycombined?

    [/QUOTE]

    It can, in case of a child with special needs. But as a common rule, alimony cannot be more than 33% of your pay, according to established jurisprudence.

    There is no difference between alimony and child care in Brazilian law, it’s all called alimony.

    [QUOTE=Richard V]

    Is alimony forever, or only until the kids pass beyond thechild support criteria?

    [/QUOTE]

    Kids, until 18 years of age, unless they are studying, in which case it’s 24 (as a general rule of jurisprudence) but might be longer. A judge can decide each case on it’s merit.

    Bear in mind though that you can never just stop paying without a court order. Alimony is due until a judge says stop.

    [QUOTE=Richard V]

    Are alimony and childcare establsihed as two different amounts, or just adopted as one single percentage of the other person`s net income?

    [/QUOTE]

    Depends on the judge. As I said, the law makes no difference between one and the other. So it’s up to the judge. He can just establish a percentage, he can also establish a percentage for the ex wife and for the kids seperately, which is quite common, as, in most cases, alimony for the wife is for a few months only, unless she’s unable to provide for herself.

    [QUOTE=Richard V]

    What if she starts a successful business of her own, or marries asquillionaire down the line, will alimony be adjusted downwards accordingly?

    [/QUOTE]

    Of course.

    [QUOTE=Richard V]

    If her new man moves into the house I am paying the rent on, lock stock, does he pay me a share of the rent, or her, or am I paying for his shelter as well, from my coin?

    [/QUOTE]

    get a lawyer and file for revision.

    [QUOTE=Richard V]

    Finally, if there is no Bens regime in place from the marriage, what happens with cashin a foreign bank account, which was in that foreign bank account, before thehusband and wife met? Does it remain the sole property of the person who ownsthat cash in said bank account?

    [/QUOTE]

    Depends, where did they get married? If they got married in Brazil, the Comunhão parcial regime applies and the money would remain the sole property of the person who owned it before the marriage.

    If they got married in the US, depends on the state as far as I know.

    HOWEVER: when the marriage is registered, unless there is a pre-nup, comunhão parcial is applied to the marriage, and in case of the divorce, the person requesting the application of “california law” (Eddie Murphy’s “I want half!”), he or she must prove the foreign law, for it to be applied here, which is difficult, to say the least.

    [QUOTE=Richard V]

    To maked it more complicated, what if the marriage was in a foreign land and never registered with the Brazilian Consulate?

    [/QUOTE]

    In order to get a divorce in Brazil, you must register the marriage here first, so it’s a moot point, the answer for the previous question applies.

  • #269076

    Tony
    Participant

    Props to you for bringing the letter of the law and making objective interpretations of such.
    However, Application of the law is a bit murky here, and ruling depends entirely on which court and judge makes the final determination of amounts to be paid and through whom.
    My brother got involved into this. Here us what I gathered from his case:
    1. There were assumptions made on his income that were unrealistic. Because he has dual citizenship and lived abroad, even after submitting proof of income in Brazil as minimal, his claims were dismissed. So a higher bracket was assumed, making his child support payments unbearable.
    2. She was no poor knocked out girl. She is a practicing physician. So the assumed living standards should not apply. Nonetheless the high values apply. Assume then, child has higher expenditures stated by mother.
    3. Ruling was made on her home court.
    4. Unless you unload heavy cash on attorney’s fees to get through the nonsense and to overturn judge’s ruling , don’t expect much from the letter of the law. And by attorney I mean not just any attorney. Not your corner attorney.
    5. System is lopsided towards women, law et all. Poor, rich, middle class. The fact the ruling assumes income abroad without proof, that on itself is surreal and illustrates how unfair is the interpretation of the law.
    6. If you can come up with joint custody, then you are better off. Otherwise, you are toast.

  • #22500

    doctorlili
    Member
  • #263714

    Max
    Member

    Squidie I admire your tenacity, but I have to agree withSven, in that we can`t write up a list of the established laws of the landwe choose to opt out of. Wish we could, but I don`t think we can.

    Aside, connecting alimony and childcare, are you saying Sventhat when having two kids, and alimony on top, these payments can never amountto more than 33% of a person`s net income, the child support and alimonycombined?

    Is alimony forever, or only until the kids pass beyond thechild support criteria?

    Are alimony and childcare establsihed as two different amounts, or just adopted as one single percentage of the other person`s net income?

    What if she starts a successful business of her own, or marries asquillionaire down the line, will alimony be adjusted downwards accordingly?

    If her new man moves into the house I am paying the rent on, lock stock, does he pay me a share of the rent, or her, or am I paying for his shelter as well, from my coin?

    Finally, if there is no Bens regime in place from the marriage, what happens with cashin a foreign bank account, which was in that foreign bank account, before thehusband and wife met? Does it remain the sole property of the person who ownsthat cash in said bank account?

    To maked it more complicated, what if the marriage was in a foreign land and never registered with the Brazilian Consulate?

    Just for clarity. I have no issue with providing alimony and especially not child support, none at all, but it occurs to me alimony especially, could be quite fluid, as circumstances change for both previous partners.

  • #263728

    Max
    Member

    Thanks Sven. As usual a lot of good info and advice from youon this forum.

    Just to clarify my understanding –

    Alimony and child support are one and the same, and if itends up at 33% of net income, it will be that amount until the kids are either18, or 24 if they are studying. Correct? But after they are off on their ownpath, do I need to keep paying anything to the long ago ex-wife?

    You also state that as everyone`s circumstances change, sotoo can the court order, and it can be revised downwards if that seemsapplicable. Correct?

    What does filing for revision actually mean? Does that meanany previous order could be completely cancelled, or just the details revised?For instance if her fella moves into the house I am paying the rent on, I canfile to pay her less, on the assumption he is paying his own way?

    Regards our marriage abroad, if we registered it in Braziltomorrow, and make no application for any arrangement for our Bens at the timeof that registration, then Comunhão parcial regime applies and the money wouldremain the sole property of the person who owned it before the marriage.Correct?

    We are actually still together, two great kids, and I hopewe work our issues out, but I need to know where I stand, being the gringoabroad, surrounded by her family, in her home town.

    Thanks as always Sven

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