PROVING FINANCIAL CAPACITY IN THE INFORMAL ECONOMY: STANDARDS OF PROOF AND THE THEORY OF APPEARANCE IN CHILD SUPPORT ACTIONS

Abstract

This article analyzes the evidentiary challenges in assessing contributory capacity in child support actions, particularly in scenarios of labor informality and income concealment. Through a qualitative approach and using the hypothetical-deductive method combined with comparative law and case law analysis, it discusses the insufficiency of the static distribution of the burden of proof, which often imposes a probatio diabolica on the obligee regarding the debtor's income. As a procedural solution, it proposes the application of the dynamic distribution of the burden of proof in convergence with the Theory of Appearance, allowing the assessment of economic capacity through external signs of wealth. It argues for the express adoption of the "preponderance of the evidence" standard of proof, maintaining that, given the informational asymmetry, the prevailing probability is sufficient to ground the conviction and ensure the effectiveness of judicial protection.