CABIMENTO
A ação de alimentos tem cabimento quando o autor, ou autores, necessitar(em) seja fixado judicialmente pensão alimentícia, com escopo de prover suas necessidades fundamentais, tais como: alimentação, moradia, assistência médica, educação, vestuário, remédios etc.
Na maioria das vezes, os autores são crianças e mulheres em face, respectivamente, do genitor e ex-marido ou companheiro. Todavia, é conveniente registrar que a Lei de Alimentos não traz esta limitação, isto é, a ação pode ser intentada por qualquer pessoa, seja criança, idoso, mulher, homem, que precise da pensão alimentícia,1 em face de quem tem a obrigação de prestá-la, normalmente um parente próximo.
Observe-se, por fim, que a parte obrigada a prestar os alimentos pode tomar a iniciativa de oferecê-los, ajuizando ação em que declare seus rendimentos e requerendo a designação de audiência de conciliação, instrução e julgamento, destinada à fixação da pensão alimentícia a que está obrigado (art. 24, Lei nº 5.478/68).
BASE LEGAL
O direito de pedir alimentos aos parentes, cônjuge e companheiro encontra amparo nos arts. 1.694 a 1.710 do Código Civil, sendo que a “ação de alimentos” encontra-se disciplinada na Lei nº 5.478/68-LA.
PROCEDIMENTO
A Lei de Alimentos prevê rito especial, sumaríssimo, para ação de alimentos, qual seja:
petição inicial (art. 3º, Lei nº 5.478/68-LA):
Obs.:
a) além dos requisitos dos arts. 319 e 320 do CPC, o alimentando deverá expor na petição inicial suas necessidades e as possibilidades do alimentante (quanto ganha ou recursos de que dispõe), requerendo a fixação de alimentos provisórios;
b) o autor deverá fazer prova do parentesco;
c) formados os autos, esses são conclusos para o Juiz, que poderá: (1) determinar que o autor emende ou complete a inicial no prazo de 15 dias (art. 321, CPC); (2) não recebê-la, extinguindo o feito (arts. 485 e 330, CPC); 3) recebê-la, fixando imediatamente os “alimentos provisórios”2 e designando audiência de conciliação, instrução e julgamento;
citação (art. 5º, § 2º, Lei nº 5.478/68-LA):
Obs.: o réu será citado para comparecer na audiência de conciliação, instrução e julgamento. Tendo havido fixação dos alimentos provisórios, será também intimado para efetuar o pagamento nos termos requeridos na exordial.
audiência de conciliação, instrução e julgamento:
Obs.:
a) o não comparecimento do autor implica arquivamento do pedido, e a ausência do réu importa em revelia, além de confissão quanto à matéria de fato (art. 7º, Lei nº 5.478/68);
b) autor e réu comparecerão à audiência acompanhados de suas testemunhas, três no máximo, apresentando, nessa ocasião, as demais provas (art. 8º, Lei nº 5.478/68);
c) comparecendo as partes, o juiz tentará a conciliação que, se frutífera, será reduzida a termo e homologada por sentença. Não obtida a conciliação, o juiz tomará o depoimento pessoal das partes e das testemunhas, passando, em seguida, a palavra para os Advogados das partes e para o representante do Ministério Público para suas alegações finais, após o que o juiz renovará a proposta de conciliação, proferindo em seguida sua decisão.
sentença:
Obs.: a sentença proferida nesta ação não transita em julgado (art. 15, Lei nº 5.478/68).
O Ministério Público deve ser intimado a intervir em todas as fases do procedimento (art. 9º, Lei nº 5.478/68-LA).
FORO COMPETENTE
Segundo norma do art. 53, II, do CPC, o foro competente para se ajuizar a ação de alimentos é o do domicílio ou residência do alimentando, id est, aquele que pede o alimento, o credor. Todavia, o requerente pode, por conveniência, optar pelo foro do domicílio do réu, regra geral, consoante art. 46 do mesmo diploma, visto que a competência, neste caso, é relativa.
QUESTÕES A SEREM RESPONDIDAS PELO(S) ALIMENTANDO(S)
Com o escopo de viabilizar o melhor resultado possível para o constituinte, o Advogado deve conversar com ele sobre o caso, procurando obter resposta para as seguintes questões, entre outras:
• qual o motivo do pedido (separação do casal/doença/desemprego/obrigação paterna ou materna etc.)?
• quais são as necessidades do autor (gerais)?
• o autor possui conta corrente onde poderá ser depositada a pensão? Caso negativo, desejam a abertura de uma?
• quais são as condições financeiras do alimentante?
• qual a renda aproximada do alimentante?
• o alimentante trabalha? Onde?
DOCUMENTOS
O interessado deve ser orientado a fornecer ao advogado cópia dos seguintes documentos, entre outros que o caso em particular estiver a exigir:
• documentos pessoais daquele que pede os alimentos e do seu representante, quando este for menor (RG, CPF, certidão de nascimento e/ou casamento, comprovante de residência, número de telefone e endereço eletrônico – e-mail);
• comprovantes de despesas gerais do alimentando (por exemplo: água, luz, internet, telefone, televisão a cabo, alimentos, aluguel, mensalidade escolar, medicamentos, vestuário, lazer etc.);
• laudo médico, sempre que o alimentando tiver qualquer necessidade especial (é importante que o laudo indique a doença, as limitações, as necessidades e os medicamentos);
• documentos tendentes a provar as “possibilidades” de pagamento do alimentante (por exemplo: cópia da página de rede social que mostre bens e viagens, holerites, certidão de propriedade de bens; extratos bancários e de cartão de crédito; fotos etc.);
• rol de testemunhas (nome, endereço, telefone, e-mail e profissão de ao menos três pessoas que possam confirmar as necessidades de quem pede a pensão e as possibilidades de quem está obrigado a pagar).
PROVAS
Na ação de alimentos, a prova deve incidir, basicamente, sobre três itens: a relação de parentesco entre alimentante e alimentando; as necessidades do autor; as possibilidades do réu.
A relação de parentesco, de regra, prova-se pela juntada da certidão de nascimento ou casamento.
Quanto às necessidades do alimentando e às possibilidades do alimentante, prova-se, habitualmente, pela juntada de documentos, tais como declaração de escola, receitas médicas, recibo de aluguel, declaração do empregador, carteira de trabalho e pela oitiva de testemunhas, que, limitadas ao máximo de três pela Lei de Alimentos, devem ser, de regra, conduzidas à audiência de conciliação, instrução e julgamento pela própria parte interessada, sendo dispensada a apresentação de rol prévio (art. 8º, Lei nº 5.478/68).
CONTESTAÇÃO
Em sua defesa, no mérito, o réu pode argumentar sobre sua falta de capacidade, possibilidade, para prestar os alimentos, explicitando, é claro, seus motivos, ou, ainda, a falta de necessidade dos alimentos por parte do alimentando.
A contestação deve ser oferecida em audiência, por petição ou verbalmente; nas comarcas onde já foi implantado o processo eletrônico é comum o juiz exigir que o protocolo da contestação aconteça pelo menos duas horas antes da audiência. O advogado deve ficar atento às normas da corregedoria do Tribunal de Justiça sobre o tema e, ainda, a eventual advertência no próprio mandado citatório.
VALOR DA CAUSA
Segundo norma do art. 292, III, do CPC, o valor da causa, na ação de alimentos, deve ser o equivalente à soma de 12 (doze) prestações mensais pedidas pelo autor. No caso de o alimentando estar pedindo apenas uma porcentagem sobre os rendimentos do alimentante, cujo total é desconhecido no momento da interposição da ação, deve-se lançar como valor da causa uma importância meramente estimativa, vez que a toda causa deve necessariamente ser atribuído um valor (art. 291, CPC).
DESPESAS
Não constando da petição inicial requerimento de justiça gratuita3 (art. 99, CPC), o autor, antes de ajuizar a ação, deve proceder ao recolhimento das custas processuais, que, de regra, envolvem a taxa judiciária, o valor devido pela juntada do mandato judicial e as despesas com diligência do Oficial de Justiça. Os valores dessas custas variam de Estado para Estado; o Advogado que tiver dúvida sobre seu montante e forma de recolhimento deve consultar a subseção da OAB em sua comarca.
Dicas
• fazer constar na petição inicial o endereço completo do empregador do alimentante, ou seja, nome da empresa, rua, número, bairro, CEP, cidade, enfim, todos os elementos para possibilitar o rápido e seguro envio, via correio, do ofício que orienta sobre o desconto, em folha de pagamento, da pensão alimentícia;
• caso o alimentante não trabalhe com registro em Carteira de Trabalho ou tenha atividade autônoma, deve-se requerer a fixação da pensão em salários mínimos, de acordo com as necessidades do menor e as possibilidades do alimentante;
• no caso de pensão fixada em porcentagem do salário líquido do alimentante, é de praxe o Juízo fixá-la em 1/3 (um terço) da remuneração mensal; no entanto, nada impede que o alimentando receba valor maior se provar circunstância que justifique a majoração, tal como doença grave e permanente, que demande uso de remédios caros;
• os alimentos provisórios podem ser revistos a qualquer momento pelo Juiz; basta para tanto que o interessado, por meio de uma petição, demonstre sua impropriedade ou seu excesso;
• o não comparecimento do autor, alimentando, na audiência de conciliação e julgamento, implicará o arquivamento do pedido;
• é conveniente exortar os colegas Advogados para que busquem a fixação de uma pensão que seja realmente justa, isto é, o valor da pensão não deve ser um sacrifício exagerado para nenhuma das partes, de forma a desestimular o trabalho de uma e/ou levar à fome de outra.
• quando o devedor de alimentos tiver renda alta (réu), o Advogado deve especificar, detalhar, na petição inicial, os gastos daquele que pede alimentos, por exemplo (proporcional ao número de pessoas na casa): aluguel, imposto predial, luz, água, televisão a cabo, Internet, telefone, alimentação, educação, transporte, dentista, assistência médica, lazer etc.;
• considerando-se estes novos tempos em que é comum a disputa entre os pais pela guarda dos filhos menores, o Advogado deve avaliar com cuidado a conveniência de ajuizar “ação de regulamentação de guarda, visitas e alimentos” (ver modelo em capítulo próprio) em vez de simplesmente a “ação de alimentos”, na qual a fixação da guarda só é possível se houver acordo entre as partes.
Referência Bibliográfica:
Jr., ARAUJO, Gediel de. Prática no Processo Civil, 22ª edição. Atlas, 01/2018. VitalBook file.
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