Marital Assets and Corporations in Costa Rica. Divorce Asset Protection and Recovery.
Many people find that marriage in Costa Rica is a fantastic idea. And it is! But informing yourself before tying the knot is a better idea. It’s important to know what to expect in case of a divorce in Costa Rica. What are marital assets? How is the division of marital assets treated in Costa Rica? How is corporate property linked to the dissipation of marital assets? Have you been a victim of simulated transfers?
You decided to invest in your happiness, get married, and found a nice property in Costa Rica:
You planned everything with your fiancé and got prepared for the wedding. The ceremony took place, and fell in love with this country. It happens! Now you have decided to buy a real estate property. And why not? It’s beautiful!
Since Costa Rica has all climates (except snow), there is a space for every taste. After searching for the property of your dreams, you finally find one. You proceed with the property purchase. The question is, do you place it in your name or constitute a corporation to hold it? This action will have varied legal effects that can come to bless or haunt you later.
What are marital assets or "bienes gananciales" in Costa Rica?
Under Costa Rican family law, bienes gananciales (marital assets) are the assets acquired by either spouse during the marriage. These assets are presumed to belong to both spouses in equal shares, regardless of who appears as owner in the Public Registry. This presumption is based on the idea that marriage is an economic partnership. Thus, any property, rights, or income obtained after the wedding date is considered part of the marital estate.
How is the division of marital assets treated in Costa Rica?
Costa Rica’s régimen de gananciales (community property regime), is activated in different scenarios. The first one is when marriages end through divorce or annulment. The second scenario, is through judicial separations, or the legal causes for anticipated liquidation or division of marital assets. When these scenarios happen, each spouse is entitled to fifty percent of the net value of the other spouse’s marital assets.
What are the key characteristics of marital assets in Costa Rica?
The key characteristics of bienes gananciales are:
They are acquired during the marriage (or during a recognized common-law union, known as unión de hecho).
They are presumed to have been obtained through the joint effort or contribution of both spouses.
Each spouse is entitled to 50% of the net value of these assets upon divorce or dissolution, after subtracting any debts or encumbrances attached to them.
This presumption can be rebutted by proving that the asset is separate property (bien propio), such as an inheritance, a donation to one spouse, or property owned before the marriage.
In practice, this means that if you buy a home, a car, or even shares in a corporation after your wedding, your spouse automatically has a legal right to half of its net value — not necessarily physical co-ownership — unless you can prove it qualifies as non-marital property.
What assets are not considered marital in Costa Rica?
Article 41 of the Family Code outlines a closed and exclusive list of assets that are exempt from this 50% division. If an asset does not appear on this list, the law presumes it is marital property. The law excludes from the marital estate:
- Assets acquired during marriage, by gift, inheritance, or by chance (for example, winnings or prizes).
- Assets purchased with separate funds, provided that this is expressly established in prenuptial or postnuptial agreements.
- Another exclusion applies to assets whose cause or title of acquisition arose before the marriage, even if the formal transfer took place later.
- Assets that replace or are substituted for other separate assets—such as selling a separate property and using the proceeds to buy a new one—are also excluded.
- Finally, assets acquired during a period of factual separation between the spouses are not considered marital.
The standard legal advice for marital property in Costa Rica:
The standard legal advice in Costa Rica, is to constitute a holding corporation for the real estate property to be held. Should expats buy property in Costa Rica through a corporation? Why not? As legal professionals, we usually suggest it. Both of you form the corporation in equal partnership. As a result, you will both own fifty percent of the shares. The incorporation articles should stipulate that you must sign jointly to mortgage, sell, or dispose of the corporation´s assets. Thus, the corporation grants joint powers of attorney to both of you.
It’s a standard legal recommendation to constitute a standard corporation, which in Spanish is called a “Sociedad Anonima.” Likewise, a legal professional may suggest a Limited Liability Corporation in Costa Rica or “Sociedad de Responsabilidad Limitada.” If you constitute a stock corporation in Costa Rica, you both receive shares; if you form an LLC, you will receive quotas.Ok
Why do lawyers recommend this?
The idea behind doing this is that the asset will be protected from any personal obligations you may have. This is standard legal advice. Corporations in Costa Rica offer a myriad of benefits, from tax purposes to the limited liability they confer. Having a corporation will also cover the property investment from being sold or mortgaged by any of you since a joint signature is required. All of this makes sense.
Another option, is to own the property in both of your names. This is called co-property; each of you will personally own a percentage of the asset. For example, you decide to own property in Costa Rica jointly. Each of you ends up owning 50 percent of the asset. This means that in the Registry, each will own a right to the asset in the allocated percentage. Each right can be mortgaged, sold, or disposed of. A corporation prevents this, for better or for worse!
Positive Aspects of owning marital assets in Costa Rica, in corporations:
This legal service has many positive prospects for clients. Under the corporate umbrella, the stock corporation hides the actual shareholder. This can also give you overseas taxing protections. If an overseas company in Panama owns the company in Costa Rica, the shareholders’ identities are protected. If the holding company in Panama has bearer shares, it’s difficult to determine who the shareholder is. This remains true today despite regulations.
Another positive prospect of creating a corporation in Costa Rica is the “dismemberment of the legal personality.” This means that the shareholders are not personally liable for anything the corporation does, and the corporation is likewise not responsible for any obligations the shareholders may have. If both of you create a corporation and place the marital asset in its name, the asset belongs to the corporation.
The holding company can be a problem in case of divorce.
There is a problem with all of this. Nobody gets married, thinking of being divorced later on. The question is, if the assets placed in the corporation, are considered to be marital? I am not referring to the shares of the corporate entity. They already belong to you! What I mean is, that what you own are just the shares or quotas of the corporation itself, not the assets. Remember that the corporation owns the asset. And this is where the problems begin.
In a divorce, the net value of the assets are distributed to each spouse. Each one gets fifty percent of the net value of the marital assets. The detail here is that if the family home was placed in a corporation, then the asset is not yours! It belongs to the corporation. Keep in mind that marital assets are those that are acquired during the marriage with mutual effort. Assets acquired by a winning lottery ticket, donations, and inheritances, are not marital assets due to a lack of joint effort to obtain them. Technically, a corporation’s assets are not matrimonial since they do not belong to the couple but to the corporation. The marital assets are the shares.
Assets in a corporation are not marital assets per se:
As stated previously, if the marital assets are in the corporation, they technically are not marital assets. They belong to a third party, the legal entity or corporation, not the couple. Thus, the marital assets are the shares or quotas of the corporation. This is where it gets interesting! You should immediately contact me, to represent you. I have the legal solution to all of this.
Avoid the problem through the articles of incorporation:
Even though I have the solution to the problem, there is a way to avoid it altogether. These problems can be avoided during or after the corporation´s constitution. You both should indicate in the corporate legal books, that all the corporation’s current or future assets are marital. Many expensive litigations can be avoided with a solution as simple as this one. The incorporation of a shareholder agreement is an elegant solution to the problem.
If divorce is inevitable, what will happen to the divorce assets in the corporation? Do you lose them?
If you were already married in Costa Rica, the assets are in a corporation, and you want to get a divorce, then I can help. Divorce in Costa Rica can be amicable. If that´s the case, we can conduct the shareholders’ meeting and amicably distribute the corporation´s assets between you. This may not be possible for various reasons, and divorce litigation may be the only solution. Remember that corporations are legal entities in the eyes of third parties. If divorce litigation is inevitable and the divorce assets are in a corporation, you don´t have to panic. I have a legal solution to this conundrum, and it involves disregarding the corporate veil, among other things.
What if I am not married, and we just live together?
If both of you live together as a couple, and are single or divorced, you have legal aptitude to marry. This is what´s called a common law marriage, or a “defacto union.” This type of union has exactly the same effects as any formal marriage: child support if you have children, marital assets, and hereditary rights.
What is the dissipation of marital assets in Costa Rica?
Costa Rican law recognizes that sometimes, during a marriage, one spouse may attempt to hide, transfer, or misuse marital assets in order to prevent the other from receiving their fair share in a divorce or separation. This conduct is known as asset dissipation. Examples include selling property for less than its market value, transferring assets to friends or relatives without a legitimate reason, or spending large amounts of marital funds on purposes unrelated to the family’s needs.
Under Article 41 of the Family Code, a spouse who can prove that their interests are at risk due to the other spouse’s mismanagement or fraudulent acts may request an early liquidation of marital assets. This is a protective legal mechanism that allows the court to determine and secure the value of marital property before it is lost, hidden, or devalued. To succeed, the requesting spouse must present clear and convincing evidence of the risk or the ongoing dissipation.
If the court grants early division of marital assets, the marital property is identified, valued, and safeguarded, even if the divorce or separation is not yet finalized. This ensures that, when the marital property is ultimately divided, each spouse still receives their rightful 50% of the net value of the assets.
Because these situations often involve hidden transactions, corporate structures, or offshore accounts, it is essential to work with an attorney who understands both family and corporate law in Costa Rica. Strategic legal action can prevent irreversible losses and ensure that marital rights are preserved.
Disregarding the Corporate Veil.
In Costa Rica, it is common for real estate and other valuable property to be placed in the name of a corporation rather than in the name of the spouses directly. While this can be a legitimate estate-planning or asset-protection strategy, it can also be abused. In some divorce cases, one spouse may try to use the corporation as a shield to prevent the other from accessing their fair share of the marital property.
The disregard of the corporate veil (“levantamiento del velo corporativo”) is a legal doctrine that allows the court to look past the corporate entity and identify the real owners and the true nature of the assets. If it can be proven that the corporation is being used to commit fraud, hide marital assets, or avoid the legal consequences of the matrimonial property regime, the judge can treat the assets held by the corporation as marital property for the purpose of liquidation.
Simulated transfers of marital property.
Related to the disregard of the corporate veil, is the concept of simulation. A simulated transaction occurs when a transfer, sale, or restructuring is made to make it appear that the property no longer belongs to the marital estate. It´s called a simulation, because in reality the transaction is fictitious or the parties involved had a hidden agreement. For example, a spouse might transfer shares in a corporation to a friend or relative shortly before filing for divorce, while secretly agreeing to have the shares returned after the proceedings end.
Costa Rican law — particularly under the principles of civil law — allows the injured spouse to challenge these maneuvers through specific legal actions, including a criminal action. Proving simulation requires evidence that the legal act does not reflect the true intent of the parties, such as inconsistencies between the contract and the actual conduct, a lack of payment for a supposed sale, or the continued use of the asset by the spouse after the transfer.
Contact us for legal advice on marital property.
By combining the doctrine of corporate veil disregard with an action for simulation, an attorney can bring the hidden property back into the marital estate, ensuring that it is included in the 50% net value calculation and subject to equitable division.
These tools are essential in high-asset divorces, particularly when property is held in layered corporate structures or offshore entities. To learn more about our work in custody, marriage, and divorce matters, visit our Family Law page.
Dr. Christopher Pirie Gil.