Divorce in Costa Rica: consent or grounds

Translated from the Spanish original. If there is any discrepancy between the two versions, the Spanish text prevails. Read the original in Spanish.

After fifteen years of marriage, Andrea and Carlos have decided to separate. They have two children in elementary school, a house in his name, and a car in hers. They want to end things without a fight, but they do not know whether to go to a court, a notary public (civil-law notary), or the Civil Registry (Registro Civil). The answer depends on whether they agree on everything and whether they have minor children or property to divide.

What options are there?

The Family Code (Código de Familia) allows two. The first is divorce by mutual consent: both spouses sign a settlement agreement in a public deed (escritura pública), that is, before a notary public, and then submit it for approval (Article 48).

The second is divorce on grounds (divorcio por causal): one spouse requests it when there is no agreement, and it requires proving one of the grounds listed in the law. These include adultery, cruelty (sevicia, meaning serious mistreatment) toward the other spouse or the children, de facto separation for at least three years, and incompatibility of character (Article 48). As a general rule, only the innocent spouse may file, but either spouse may invoke de facto separation or incompatibility of character. The petition must be filed within one year after the facts giving rise to it became known (Article 49).

What is agreed about the children and support?

The agreement must settle who will have custody of the minor children, who will pay their child support and in what proportion, whether there will be support between the spouses and how much, and how the property will be divided (Article 48).

Regarding the children, the law calls for preferring shared custody and shared parental responsibility, as long as it serves the children’s best interests, and for securing their right to housing. A family contact arrangement (régimen de interrelación familiar) must also be set, covering visits and communication with the parent who does not live with them and with other close relatives. What is agreed about the children may be modified later if circumstances change (Article 152).

What happens to the house and other property?

Upon divorce, each spouse is entitled to half the net value of the marital property (bienes gananciales) held in the other spouse’s name (Article 41). Marital property is, in general, property acquired during the marriage. It does not include, among other things, property received by inheritance or gift, property whose origin lies in an event before the wedding, and property acquired during a de facto separation.

If the house is used as the family home, the parent who keeps the minor children has priority for payment of their marital-property share (same article).

What changed in the procedure?

The Family Procedure Code (Código Procesal de Familia, Law No. 9747) has been in force since October 1, 2024, and the Family Code was amended again in February 2025 (Law No. 10650). These are the most useful changes:

Divorce without a court in the simplest case. If there are no minor children in common and no property to divide in the agreement, the deed is submitted directly to the Civil Registry for approval and recording. If there are minor children or property, approval is still handled by a court (Family Code, Article 48).
The children are heard. Minor children have the right to give their opinion on their care and their relationship with each parent, either before the judge or in writing. The judgment approving the agreement is served on the National Child Welfare Agency (Patronato Nacional de la Infancia), which may challenge it (Family Procedure Code, Article 290).
The judge reviews the agreement. The judge may change what was agreed about the children’s care and visits (Article 292). Before approval, an objection to the agreement is allowed only if consent was flawed or there was falsehood (Article 293).
Oral proceedings. Cases are handled orally (Article 4). In a divorce on grounds with no children who are minors or have a disability, if the respondent does not object and there are no disputes over property transfers or damages, the judge may issue a judgment without calling a hearing (Article 226).

Practical recommendations

Make an inventory before negotiating. List real estate, vehicles, accounts, and debts, and whose name each one is in.
Build the agreement around the children. The judge can change anything that does not serve them, so a realistic agreement on custody, support, and housing is approved with fewer setbacks.
Document the date of separation. Property acquired during a de facto separation is not marital property, and three years apart allow a spouse to seek a divorce even if the other does not want one.
File the agreement on time. It must be filed within three months after it is signed before the notary public, unless both spouses file it together (Family Code, Article 48).

Need help?

A good agreement prevents years of disputes over support, visits, or property. At Murillo y Guzmán we can draft the agreement as a public deed, handle its approval, and, if there is no agreement, represent you in the divorce proceedings. Book a consultation.

This article is for informational purposes only and does not constitute legal advice for any specific case. To discuss your situation, book a consultation.