Getting divorced in Costa Rica. ☎️Grounds for divorce and marriage dissolution.
I was married in the United States. Can you get divorced in Costa Rica if you were married abroad?
I receive this question frequently. The short answer is yes, but jurisdiction depends on specific legal criteria. Under Costa Rican law, the key factor in determining jurisdiction for divorce is not where the marriage took place, but rather where the spouses reside. The Family Procedural Code establishes the following rules:
- The divorce case can be filed in the Family Court of either spouse’s habitual residence or domicile, at the plaintiff’s choice. This means that if either of you live in Costa Rica, you can file for divorce here, regardless of the country in which you were married. You will need to get an apostilled marriage certificate, with no more than six months since issued, in order to proceed.
- If neither party have their residency or domicile in Costa Rica, the competent court will be the First District Court of San José.
What can I do if I was divorced in the United States or abroad, but my marriage appears registered in Costa Rica?
If you were divorced in the United States or in another country, but your marriage is still registered in Costa Rica, you don’t have to get divorced all over again in Costa Rica. A legal process called an Exequatur, can be filed at the Supreme Court of Costa Rica, to get the foreign divorce recognized and enforced locally. This process is handled by the Second Chamber of the Costa Rican Supreme Court (Sala Segunda). Once approved, the judgment can be officially recorded in the Civil Registry, updating your marital status in Costa Rica.
To obtain the Exequatur, you must submit a certified and duly apostilled copy of the foreign judgment and court transcripts and an official Spanish translation if it’s in another language. Our law firm has liaisons with official translators who will handle the translations. All you need to do is contact us, and send the apostilled documents. The exequatur process requires that all documents be filed physically, and thus, they must be sent to us via courier.
Additional supporting documents—such as your marriage certificate and, if applicable, the birth certificates of any children—may also be required. These documents must be issued within no more than six months of filing the Exequatur. Our law firm regularly handles these procedures and can assist you with the legal and practical steps to ensure your divorce is fully recognized in Costa Rica.
What are the two main types of Costa Rica divorce?
Marriage dissolution can be accomplished in two ways. On the one hand, you can get a mutually consented divorce. As the name suggests, this is obtained by a spousal agreement. It is, therefore, non-litigious. On the other hand, if a deal is not possible, divorce in Costa Rica can be obtained through a contentious divorce which involves litigation. Hence, legal action must be initiated. However, both parties can settle their differences anytime through a divorce settlement agreement or mediation.
NON-LITIGIOUS DIVORCE IN COSTA RICA. (Divorce by mutual agreement):
The mutually consented divorce. The ideal scenario your divorce attorney may recommend:
Suppose you and your spouse have common grounds. Under such a circumstance, getting a mutually consented divorce is better. The idea is to stray from litigation and to do things amicably. This is a very common legal service I provide as a divorce lawyer. A mutually agreed divorce consists of two stages that are as follows:
Stage A: The divorce Agreement:
Both spouses must first hire a divorce attorney like me in Costa Rica, who also practices as Notary Public. Remember that notaries in Costa Rica are lawyers, but only some divorce lawyers are Notaries Publics. So be sure to hire one that is both so things run smoothly. Once the Notary is employed, the agreement must be redacted and signed, by both spouses, in the notary´s protocol. The divorce is null and void if it’s not done this way.
The divorce agreement must also mention several points established in Article 60 of the Family Law in Costa Rica. If you are not in Costa Rica, you can ask a third party to sign by granting an extraordinary power of attorney. This exceptional power must also contain the exact wording of the divorce agreement you authorize the proxy to sign. The points that the divorce agreement must have are the following:
A. Spousal Alimony:
Both spouses can forfeit their right to alimony, either for a specific time frame or for life. If the right is not forfeit, both parties must establish who will pay alimony to whom, and the exact amount.
You should know that alimony in Costa Rica can´t be previously negotiated through a prenup agreement.
B. Marital Assets:
Both parties must stipulate how marital assets are distributed. Marital assets are those that were acquired during the marriage. Donations and inheritances are not considered marital assets. A prenup agreement can previously state if there is a right -or not- to marital asset division.
C. Custodial agreement for underage children:
Both parents have parental authority over minors. Custody must be established, with visitation regimes if applicable.
D. Child support:
Both spouses must establish the amounts, that each person or only one person will contribute to child support. Child support in Costa Rica includes alimentation, housing needs, education, clothing, medical needs, and even entertainment needs.
E. Any other terms:
Any other terms can be negotiated and set in the divorce agreement, such as the type of school the children will attend, and even the distribution of assets that legally are not considered as marital. This is a voluntary agreement, so it’s subject to what both parties want.
F. Visitations:
Visitations and time with children is not only the parents’ right but the children’s. The time the child will enjoy with each parent must be negotiated in the terms of the mutually consented divorce.
Stage B: The Administrative or Judicial Request:
The Family Judge must acknowledge the notarized divorce agreement. Next, your divorce attorney must file the divorce agreement and a signed request to the Family Jurisdiction. The request is to the Family Judge, asking him to homologate the agreement and declare the divorce. Family law in Costa Rica stipulates that this must be done within three months after signing the divorce agreement. If everything is in order, a judgment will be given by the family judge, declaring the divorce. Next, the court will issue an order to the Civil Registry, where your civil status will be changed to “divorced.” If there is a change in asset ownership, per the agreement, another order will be issued. This time to the Public Registry, where asset ownership will be modified.
THE CONTENTIOUS DIVORCE IN COSTA RICA: GROUNDS FOR DIVORCE LITIGATION
As a divorce attorney, I know that many times its impossible to reach an amicable agreement. Litigation becomes the only way. When litigation happens, you can always settle out of court. Your divorce lawyer, may even recommend to wait until the conciliation hearing, to find an alternate means of dispute resolution.
What are the litigious divorce grounds in Costa Rica?
All grounds for divorce are established by law, not by jurisprudence. Therefore, the Judge can´t make up reasons for marriage dissolution that are not previously specified by the written word of the law. This is known as the Principle of Legality. Accordingly, article 48 of the Family Law in Costa Rica, or “Family Code,” establishes the litigious grounds for divorce. The divorce litigation grounds in Costa Rica are the following:
Adultery:
This cause for divorce litigation in Costa Rica is self-explanatory. If the plaintiff (in a divorce lawsuit) or the counter plaintiff (in a divorce counter lawsuit) can demonstrate that the other party was unfaithful, said party loses the right to alimony and is usually sentenced to pay divorce attorney fees and court costs. The divorce is also granted.
An attempt on the life of the spouse or their children:
No prior criminal conviction is necessary for this cause for divorce. The aggrieved party has only to demonstrate the attempt on their life, in the divorce case, and it will go through.
Forcing sexual corruption and (or) prostitution or any of the children or spouse:
Again, no prior criminal conviction is necessary. Custody is eliminated, and parental rights are suspended or revoked.
Cruelty directed to the spouse or the children:
Your divorce lawyer may recommend divorce litigation on these grounds. Physical, mental, or emotional cruelty causes marriage dissolution in Costa Rica.
Judicial Separation for a term of not less than a year:
Grounds for divorce in Costa Rica will be granted if the judicial separation during this time frame has not made reconciliation possible.
Legally declared spouse absentia:
This cause for divorce is per the Costa Rican Civil Code, for the judicially declared absence of a person presumed dead after a specific time frame.
De facto separation for at least three years:
If both spouses separate and go their way for at least three years, any of them can file due to the “de facto” separation.
Character incompatibility:
This is a new ground under divorce law in Costa Rica. At least six months after the marriage, any spouse can invoke this cause and file. The incompatibility does not have to be proven. One only has to invoke it. The governing paradigm is freedom of choice regarding civil status.
What are the legal effects of the marriage dissolution?
As a divorce attorney, I always explain to my clients that there are no “givens” in law. A divorce lawyer will always try to give you the best representation possible. But there are never any guarantees. However, theoretically, you can expect the following legal effects when your marriage is dissolved:
Your Civil Status will change:
Your divorce lawyer properly filed your lawsuit. and the grounds were proven. The family litigation ran its course, and the Family Judge decided the case’s merits. The Judge will order the Civil Registry to change your civil status. Hence, your civil status will change from “married” to “divorced.” You can actually buy civil status certifications, from the Civil Registry of Costa Rica, and have the certification apostilled for diverse uses in your country of origin.
Marital assets are auctioned and proceeds divided:
All assets acquired during the marriage, with “mutual effort,” are considered marital assets. For example, if you buy a home in Costa rica while married and placed it in your name, it is regarded as a marital asset. However, if no prenup agreement was made, each of you have a right to participate on the net value of the marital assets on a 50-50 percent basis. So even though that house is in your name, your spouse has a right to fifty percent of its net value.
However, if the house was a gift for you (a donation) or the product of an inheritance, such an asset is not considered under the marital rule. I have litigated cases in which donations have been used as a “mask” to hide what, in reality, was a sale. People have done this to avoid the marital rule. Simulations like this can be overturned through litigious means.
Spouse alimony and child suport obligations:
Spousal alimony and child support, can be requested in a different procedure known as an “Alimentary Pension Procedure”, or “proceso de pensión alimentaria” in Spanish. Child support and spouse alimony are established in a determined amount of money, to be paid monthly. Failure to pay can have severe consequences, such as imprisonment in Costa Rica. Alimony and child support claims can be filed in separate proceedings, and the amounts must be proportional and rational to the economic capabilities of the obligated person. Child support involves alimentation, education, entertainment, and general health, among other aspects.
Child custody:
Article 152 of the Family Law in Costa Rica prioritizes granting custody to both parents. Gender equality goes both ways. Joint custody is not always given, and in such cases, the Judge will determine which spouse gets the regular care, upbringing, and children’s education. It’s important to note that even though they are minors, they have a right to be heard by the Judge in custody disputes. These aspects will be ruled upon, taking children’s best interests first. The moral and physical aptitudes of both parents are taken into account. However, I must emphasize that the interrelation of children with their parents is a human right of the children.
Interrelation and visitations:
Many years ago, visitation rights were timidly granted by the Costa Rican Family Courts. Visitations revolve around the children and their best interests. They have a human right to spend sufficient time with their parents and the rest of the family. If your spouse become impossible, you can request a visitations process, where the Judge will make a ruling on when you will have access to your children.
Other aspects to consider:
Is there a statute of limitations?
We previously examined the ligitious grounds for divorce in Costa Rica. The only person that can file is the innocent party, but with the burden of proof. There is also a barrier to filing legal action, which is the statute of limitations. For divorce grounds, the statute is one year after the fact. Your Costa Rica divorce lawyer must analyze if the statute of limitations has made litigation futile. The good news is that under grounds of character incompatibility, there is no statute of limitations.
So why file for divorce invoking other grounds besides incompatibility?
Because the spouse proven to have been cruel, unfaithful, etc., loses their right to alimony. You can also request civil damages (monetary compensation) for your pain and suffering. These are the main reasons to invoke divorce grounds such as adultery, and cruelty.
If you just file for “incompatibility,” you miss out on having a possible burden of alimony removed and monetary compensation for your pain and suffering. So if you are the aggrieved party of adultery, cruelty, etc., initiating divorce litigation on these grounds is a good idea. To be clear, these grounds would be your main request. As a subsidiary request, it’s a good idea to invoke the incompatibility of characters. If, for any reason, your divorce does not go through for the main alleged grounds, it will go through for the subsidiary grounds of incompatibility.
What happens if assets are in a corporation? Are they lost?
Not necessarily. Assets acquired during a marriage in the corporation’s name are owned by the corporation, not the spouses. This puts both spouses in a delicate spot. But all is not lost! I have a legal solution if the marital assets were placed in the name of a corporation. You should contact me to represent you right away.
What can you recommend as a divorce attorney in Costa Rica?
What can I do if marital assets were transfered to third parties?
This happens a lot. In such cases, we must look into the transfers themselves. Regarding marital assets, Costa Rica follow a regime of “Differed Participation.” This means that if the asset is in your name, you can legally sell, mortgage, donate, and do what you wish under proprietor laws. However, these transactions must be real, for them to have any legal effect. If the assets are donated or “sold”, when the marriage was failing, it´s possible that these transactions were not real. These would be illegal simulations of sales and (or) donations, that are null and void. Simulated transfers, used to avoid the marital asset regime, are not considered valid under law. In such cases, you have legal remedies at your disposal. Legal action to have the Judge rule on the simulation, can be filed, in the divorce itself, not to mention criminal complaints in the Criminal Justice System.
Is there a difference between getting divorced in Costa Rica and a marriage annulment?
As stated previously, a divorce aims at the dissolution of a validly celebrated marriage. On the other hand, a marriage annulment seeks to have the marriage declared null and void, as though it never happened.
How are divorce grounds established in Costa Rica? By family law or Jurisprudence?
As in every country, you must always consult a divorce lawyer before proceeding with divorce. You may find many legal similarities between divorce in Costa Rica and divorce in your native country. Nevertheless, if you are an English subject, a Canadian, or an American citizen, you are already accustomed to Common Law. In that case, you will find that our family law system differs greatly. Therefore, I recommend you keep reading to understand the grounds for divorce in Costa Rica.
First and foremost, you must know that all grounds for divorce are established by law, not jurisprudence. Unlike the common law system, Costa Rica´s legal system is based on Napoleonic Law. It has codification under its very core. Judges in Costa Rica, therefore, act and decide by the law itself. Under the “Legality Principle”, no grounds for divorce can be created by jurisprudence or doctrine. Judges must abide by the boundaries of the law.
Is getting divorced in Costa Rica easy?
Costa Rica divorce laws are coded. Our legal system is not based on a common law. The Costa Rica Family Code, is one of the most important family and divorce laws that we have. The Code specifies the grounds for divorce. Judges are limited under checks and balances. Therefore, jurisprudence is used to interpret the law rather than create it. Thus, all grounds for divorce in Costa Rica are established and coded by law.
With the advent of the new Family Procedural Code, many legal barriers that prevented divorce in Costa Rica have been eliminated. Nowadays, it’s easier to hire divorce attorneys in Costa Rica. To summarize, all grounds for divorce in Costa Rica are established by law, and jurisprudence is a source that helps interpret and integrate it. Judges cannot make up grounds for divorce since they must abide by the rule of law. Grounds for divorce in Costa Rica are found in Article 48 of the Family Code.
Contact me to be your Costa Rica divorce lawyer.
I have been a litigation divorce attorney in Costa Rica for over twenty years. Please feel free to contact me if you have any questions and require legal advice. I will be happy to give you more information on the grounds for marriage dissolution or annulment in Costa Rica and provide you with legal representation. My family consulting law firm is located in Santa Ana, San José. Nevertheless, I can represent you with divorce in San Jose, Cartago, Heredia, Alajuela, Limón, Puntarenas, and Guanacaste.
Dr. Christopher Pirie.
Divorce lawyer in Costa Rica.
