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Grounds for Divorce in Costa Rica

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GROUNDS FOR DIVORCE IN COSTA RICA

As a divorce attorney, I know that in the eyes of the law, the marriage paradigm is to have a life in common, cooperate, and mutually assist one another. Hence, civil marriage in Costa Rica pursues a “life in common” as its core purpose. However, life in common is not always possible, and couples divorce. It’s a fact of life. The objective behind it is the dissolution of the marriage.  You can get it in Costa Rica in two main ways:  a mutually consented divorce or by litigation,  with the filing of legal action. You must know that a divorce lawyer is essential in both scenarios. Before considering any lawsuit, your legal counselor must assess your case.  Whereas a divorce may be viable, your case may merit a marriage annulment.

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Family Law, and not Jurisprudence, establish grounds for divorce:

As in every country in the world, you will have to consult a family lawyer and find many legal similarities between divorce in Costa Rica and dissolution in your 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 from your country’s.   Therefore, I recommend you keep reading better to understand the grounds for divorce in Costa Rica. 

First and foremost, you must know that all grounds for divorce in Costa Rica are established by law, not jurisprudence. Unlike the common law system, Costa Rica´s legal system is based on Napoleonic Law, which had codification under its very core. Judges in Costa Rica, therefore, act and decide by the law itself, under a principle called “The Principle of Legality.” Under this principle, no grounds for divorce can be created by jurisprudence or doctrine. So, judges can´t make up divorce grounds as they see fit since they must abide within the boundaries of the law. Similarly, divorce lawyers can´t make up grounds for divorce either.

Nowadays, its easier to get a marriage dissolution in Costa Rica:

Thus, divorce in Costa Rica is not based on a common law system but on a coded one, and Judges are limited under checks and balances. Therefore, jurisprudence is used to interpret the law, not create it. Thus, all grounds for divorce in Costa Rica are codified in the Family Law, accurately known as the “Family Code.” This means that the only grounds for divorce are the ones that are specified by it.

As you will see, many legal barriers that prevented divorce in Costa Rica have been eliminated. Nowadays, it’s easier to hire divorce attorneys in Costa Rica and get a divorce. 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 coded law. Grounds for divorce in Costa Rica are found in article 48 of the family code. 

Consult with the expert

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NON-LITIGIOUS DIVORCE IN COSTA RICA
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. It involves keeping things simple. A mutually agreed divorce consists of two stages that are as follows:

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Stage A: The divorce Agreement:

Both spouses must first hire a divorce attorney in Costa Rica, that is also a Notary Public, like me. Remember that notaries in Costa Rica are lawyers, but only some divorce lawyers are Notary Publics. 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 on your behalf by granting an extraordinary power of attorney.  This extraordinary power must also contain the exact wording of the divorce agreement you authorize the proxy to sign.  This power of attorney must duplicate the divorce agreement, word by word.  The points that the divorce agreement must have, are the following:

A. Spouse alimony:

Both spouses must establish if alimony is to be paid and in what precise amount. Both parties can waive this right if they wish to.

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.

C. Regarding underage children:

Both spouses must agree on the custody of the children. Article 152 of the Family Law in Costa Rica establishes a priority to grant custody to both parents. However, this is only if it serves the children’s best interests. Moral and physical aptitudes can change this. Alimony must also be established, and who will have the regular care, upbringing, and education of the children. Visitation and interrelationship plans must also be specified.

Stage B: The Administrative or Judicial Request:

If there are no children or marital assets, your lawyer can file the agreement at the Civil Registry. This will make the divorce go faster. If there are assets and (or) children, the agreement must be filed with a signed request to the Family Jurisdiction. Family law in Costa Rica stipulates that this must be done within three months after the deal is signed. Your divorce attorney in Costa Rica must hurry to file this property within the established period for the divorce to go through.

GROUNDS FOR DIVORCE LITIGATION IN COSTA RICA

Article 48 of the Family Law in Costa Rica, or “Family Code,” establishes other grounds for divorce besides the mutually consented procedure I summarized earlier. These other grounds involve divorce litigation in Costa Rica. They are the following:

Adultery and Cheating:

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 grounds for divorce are 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, for the divorce to 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 suspended or revoked.

Cruelty directed to the spouse or the children:

Evidence in any divorce litigation in Costa Rica can be of physical, mental, or emotional cruelty, and it’s up to the Judge and Jurisprudence to determine what constitutes cruelty.

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 own way for at least three years, any of them can file grounds for divorce of de facto separation.

Character incompatibility:

This is a new cause for divorce in Costa Rica. At least six months after the marriage, any spouse can invoke this cause and file for divorce. The incompatibility does not have to be proven, one only has to invoke it, and the divorce will go through. Due to the simplicity of not having to prove anything, I believe this will be the most used cause of grounds for divorce in Costa Rica. The governing paradigm is freedom of choice regarding civil status.

Effects of the Costa Rican marriage dissolution:

Your divorce attorney in Costa Rica must file the lawsuit properly.  All facts are established orderly, and he must request all things properly.  If everything is done correctly, the lawsuit will proceed, and the judge will resolve your case.  The final resolution will have several effects:

Your Civil Status will change:

Suppose your divorce lawyer properly filed your lawsuit. The family litigation goes through, and it’s now up to the Family Judge to decide the case’s merits. In all cases, the final resolution must establish the divorce request. If the divorce request goes through, the Judge will order the Civil Registry in Costa Rica to amend all civil statuses. Your civil status will change from “married” to “divorced.” 

Judgment regarding marital asset distribution:

The judge will also rule regarding marital asset distribution. Assets acquired during a marriage are placed in corporations that belong to the corporation, not the spouses. Initially, they may not be considered marital assets by themselves since the only thing that may belong to the spouses is the shares.

However, the abuse of the figure of corporations in Costa Rica may lead to disregarding the corporate entity and stipulating that the assets of the corporation are, in fact, marital assets. It’s advisable to keep this in mind if both of you decide to buy real estate in Costa Rica. It may not be a good idea to place it in the name of a corporation; this can present problems when filing grounds for divorce in Costa Rica. You can read more about marriage assets and corporations by clicking on the link.

Alimony for spouses and Children:

A spouse may have requested alimony in the divorce lawsuit if needed and proved. In Costa Rica, the Judge may grant alimony to spouses if they need it. This must be proportional to the economic capabilities of the obligated person if there are underage children, who will pay for their alimony, and what amount is also established. Children´s alimony involves alimentation, education, entertainment, and general health, among other aspects.

Child Custody:

Article 152 of the Family Law in Costa Rica establishes a priority to grant custody to both parents. The resolution will also set who will have the regular care, upbringing, and education of children. It’s important to note that even though they are minors, they have a right to be heard by the Judge in these 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.

Visitation and Interrelations:

Many years ago, visitation rights were usually timidly granted by the Costa Rican Family Courts. Nowadays, visitations revolve around children´s right to spend sufficient time with their parents and the rest of the family. So, it’s common practice to grant weekends, and even vacations, equally to both parents so that children´s rights to have a relationship with both parents are upheld. This happens, of course, if both parents are apt in the eyes of the Family Court.

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Why file for divorce invoking other grounds besides incompatibility?

The innocent party can file divorce litigation in Costa Rica only in cases of cruelty, adultery, attempts on life, corruption, and others. There is a statute of limitations of one year, which dies a quo after the aggrieved party knows the fact. Your Costa Rica divorce lawyer must analyze if the statute of limitations has passed in these cases. The spouse proven to have been cruel, unfaithful, etc., loses their right to alimony. This is the main reason to invoke and prove these allegations.

However, the incompatibility of characters does not have a statute of limitations. If you are the aggrieved party of adultery, cruelty, etc., it’s a good idea to initiate divorce litigation alleging these grounds as 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.

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 you as your divorce attorney. Divorce in Costa Rica can be amicable.  If that´s the case, we can do the shareholder´s act and amicably distribute the corporation´s assets between you.  

This may not be possible for various reasons, and divorce ligation 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 in Costa Rica, you don´t have to panic.   In litigation, we must prove that the corporation was enacted as a marital asset holding company.  

The idea is for the Judge to pierce the corporate veil and disregard the corporate figure.  The request is to rule that the corporation´s assets are divorce assets in Costa Rica. Hence, they are to be divided and distributed in both of your names.  If all else fails, remember that you own the corporation’s shares.  As a shareholder, you will then need to move in compliance with corporate and commercial law.  This, of course, is another topic.

Contact me as your divorce lawyer in Costa Rica. If you were married in Costa Rica and have a legal situation I can help. If you are planning a marriage in Costa Rica, I can also help you:

Many people end up in expensive litigations due to erroneous recommendations by their marriage lawyer. If you want a marriage in Costa Rica, you should consult me as a marriage lawyer before your wedding. 

As a notary public, I can even marry you and give you the best advice possible regarding marital assets in Costa Rica.  Even though this article offers sound advice, there is no general rule; one must study each case individually. Contact me to be your marriage lawyer in Costa Rica and get the proper legal counseling you deserve.

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My name is Christopher Pirie. I have been a divorce attorney in Costa Rica for over twenty years. Contact me if you have any questions about grounds for divorce in Costa Rica or need if you need legal representation.  I will be happy to answer your questions, and even recommend mediation if applicable.

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