Types of Costa Rica Divorce. ☎️ Grounds for marriage dissolution.
Divorce is a fact of life. The main objective is the dissolution of a valid marriage, the distribution of marital assets, the assignation of child support, and alimony for the spouse who needs it. Costa Rica divorce can be obtained either by mutual consensus or through litigation. A divorce attorney is essential in both scenarios. On the other hand, a marriage annulment aims to have the marriage declared null and void, as though it never existed in the first place. As a divorce lawyer in Costa Rica, I can assist you with your case, whether it is to file for divorce or request your marriage annulment. We can file for divorce or marriage annulment anywhere in Costa Rica: San Jose, Cartago, Limon, Heredia, Alajuela, Puntarenas and Guanacaste.
What is the difference between a divorce 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, or even non-existent.
I was married in the United States. Can I get a divorce or a marriage annulment in Costa Rica?
I get this question a lot! The answer depends. If your spouse lives in Costa Rica, then the Costa Rican courts, do in fact, have jurisdiction to resolve your divorce. The logic of marriage varies from the logic of divorce. The Costa Rican courts have ruled that it doesn´t matter where the wedding was celebrated. So, whether you were married in Costa Rica is not a decisive issue. The important thing is to determine where the grounds for divorce occur, primarily where the counterparty resides. So, if your spouse lives in Costa Rica, our Courts have jurisdiction to resolve your case.
What does this mean? Is it easy to get a divorce in Costa Rica?
This means that divorce in Costa Rica is not based on a common law system but rather a coded one, where law articles specify 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 in a set of laws called the “Family Code.” The only grounds for divorce are the ones specified by it, which we will cover on this site.
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. 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.
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. (The mutually consented divorce):
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 must establish if alimony will be paid and the exact amount. Even though you are getting divorced, the alimony obligation stems from a duty of mutual help. One or both parties can give up this right for a specific period or for life. 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:
Joint custody can be decided. Custody agreements can change, however, concerning the child’s best interests.
D. Child support:
Both spouses must establish the amounts, that each person or only one person will contribute to. 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.
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?
As previously stated, 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. 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.
How are divorce grounds established in Costa Rica? By family law or Jurisprudence?
As in every country, you must consult a divorce lawyer before anything. You may 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 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. This is a legal principle called “The Legality Principle.” 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. Instead, they must abide by the boundaries of the law. Similarly, divorce lawyers can´t make up grounds for divorce either.
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 asset ownership will be modified:
All assets acquired during the marriage, with “mutual effort,” are considered marital assets. For example, if you bought a house while married and placed it in your name, it is regarded as a marital asset. However, if no prenup agreement was made, all marital assets are divided on a 50-50 percent basis. So even though that house was in your name, your ex-spouse will own fifty percent of it after the proceedings. 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 visitations 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. This is the main reason to invoke and prove these allegations. If you just file for “incompatibility,” you miss out on having a possible burden of alimony removed. 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 name of a corporation are owned by the corporation, not the spouses. This puts both spouses in a delicate spot. They may not be considered marital assets by themselves since they do not belong to any of the spouses but to the corporation itself. The only true marital assets would therefore be the corporative shares. If both of you own 50% each, then there is nothing to divide. You already did that. All in all, I consider placing marital assets in corporate entities, a bad idea. However, all is not lost.
What can you recommend as a divorce attorney in Costa Rica?
Ethically, as a divorce attorney, I will always ask if an amicable divorce settlement agreement is possible. If that´s the case, we can do the shareholder´s assembly and distribute the corporation´s assets between you both. This may not be possible for many reasons. Divorce ligation may be the only solution. Remember that corporations are legal entities in the eyes of third parties. In litigation, we must prove that the corporation was enacted as a marital asset holding company. This is called the “piercing of the corporate veil.” The idea is to cast out the corporate shell and therefore show that the assets are your marital assets.
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. If they were not real but simulated, you have legal remedies at your disposal. Simulation legal actions can be filed, in the divorce itself, not to mention criminal complaints.
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. I will be happy to give you more information on the grounds for marriage dissolution or annulment, in Costa Rica and give you legal representation. My family consulting law firm is located in Santa Ana, San José. Nevertheless, I am able to represent you with divorce in San Jose, Cartago, Heredia, Alajuela, Limón, Puntarenas, and Guanacaste.
Dr. Christopher Pirie.
Divorce lawyer in Costa Rica.
