Divorce in Colombia: Legal Process and Requirements

We recognize the emotional complexity and legal intricacies of divorce. With a deep understanding of Colombian family law and a compassionate approach, we're dedicated to guiding our clients seamlessly through every step of the divorce process. Whether you're a native Colombian or an expat navigating a cross-border separation, our comprehensive services ensure that your rights are protected, and your concerns are addressed with utmost care.

Colombia has seen significant changes in its legal and societal understanding of marriage and divorce over the decades. Historically, the predominantly Catholic nation upheld marriage as a lifelong commitment, and divorce was viewed through a lens of stigma and skepticism. However, the turn of the 21st century witnessed a progressive shift in this perspective.

With the enactment of Law 25 of 1992, Colombia formally recognized divorce for civil marriages, making provisions for couples to dissolve their union under specific conditions. This groundbreaking legislation marked a pivotal turn, reflecting the evolving societal norms and the nation's commitment to upholding individual rights within marital relationships. The process, though legally straightforward, requires careful navigation through the intricacies of Colombian family law.

Furthermore, the understanding of divorce has transcended legal frameworks, resonating with broader societal transitions. As Colombian society becomes more globalized and urbanized, attitudes towards personal relationships, marriage, and divorce are undergoing transformation. While the essence of familial bonds remains robust, there's a growing acceptance of the fact that sometimes, for the well-being of all involved, it's necessary for paths to diverge.

What are the basics of divorce in Colombia?

Divorce in Colombia is governed by specific laws and procedures. Here's a basic overview of the process and requirements:

Types of Divorce

There are two main ways to get divorced in Colombia.

• Mutual Agreement: Both parties agree to the divorce and its terms.
• Contentious Divorce: When there is a disagreement, and one spouse files a lawsuit against the other.

Grounds for Divorce

Some of the legal grounds for divorce include adultery, physical or mental abuse, de facto separation for at least two years, mutual consent, and certain criminal convictions.

Divorce Process

• Mutual Agreement: The divorce can be processed through a notary if there are no underage children. With underage children, the divorce must go through a judge to ensure child welfare.
• Contentious Divorce: This will be processed in a family court, where a judge will make the final decisions regarding the dissolution of the marriage.

Property Division

Colombia operates under a marital property regime. Assets acquired during the marriage are typically considered joint property and are divided equally unless there's a prenuptial agreement that states otherwise.

Child Custody and Support

The well-being of the child is paramount. Courts generally prefer joint custody arrangements, but the specifics will depend on individual circumstances. Child support will be determined based on the needs of the child and the financial capabilities of the parents.

Spousal Support

Alimony can be granted depending on the financial situation of each party and the circumstances of the divorce.

Legal Representation

While not mandatory, it's advisable to have a lawyer, especially in contentious divorces, to ensure that all rights are protected and the process goes smoothly.

Duration

The duration of the divorce process can vary. A mutual agreement divorce through a notary can be relatively quick, sometimes in a matter of weeks, while contentious divorces in court can take several months or even years, depending on the complexity of the case.

Foreigners and Divorce

Foreigners who were married in Colombia can get divorced in the country. Additionally, if married abroad but residing in Colombia, they can also access the Colombian divorce process under certain conditions.

How do the basics of divorce in Colombia differ if at least one of the parties are a foreigner?

When at least one of the parties involved in a divorce in Colombia is a foreigner, several specific considerations come into play:

Jurisdiction

If the marriage took place outside of Colombia, the Colombian courts would need to determine if they have jurisdiction over the divorce. Typically, if both parties are residing in Colombia or if the foreigner is the one initiating the divorce and has been residing in the country for a certain period, Colombian courts may assume jurisdiction.

Recognition of Foreign Marriages

For a Colombian court to process a divorce, the marriage must be recognized in Colombia. If the marriage was conducted abroad, the foreign marriage certificate must typically be apostilled (or legalized, depending on the country of origin) and translated into Spanish by an official translator.

Application of Foreign Laws

In some cases, especially when dealing with the division of assets or child custody, Colombian courts might defer to or consider the laws of the country where the marriage took place or where the majority of the couple's assets are located.

Division of Assets Located Abroad

It can be more complicated for a Colombian court to enforce the division of assets located in another country. In such cases, international treaties and agreements between Colombia and the other country might come into play.

Child Custody and International Relocation

Issues surrounding child custody can become especially complex when one parent is a foreigner and wishes to return to their home country with the child. International treaties, such as The Hague Convention on the Civil Aspects of International Child Abduction, can influence decisions regarding child relocation.

Documentation

Foreigners will need to provide specific documentation, such as a valid passport, proof of legal stay or residency in Colombia, and any other relevant documents related to assets, prenuptial agreements, or children's well-being.

Legal Representation

It's highly advisable for foreigners to seek legal representation familiar with international divorce cases. This will ensure that their rights are adequately protected, and all necessary steps are taken for a smooth process.

How does a simple divorce with no children and no assets to divide work?

A simple divorce with no children involved and no assets to divide is generally the most straightforward type of divorce. In Colombia, when both parties are in agreement, this can be expedited quite efficiently. Here's a step-by-step breakdown:

Mutual Agreement

Both spouses need to be in mutual agreement about the divorce. This means that both parties concur on ending the marriage without any disputes over assets or other matters.

Notary Process

In cases with no underage children involved, the divorce can be processed through a notary, which is quicker and simpler than going through a court.

Draft a Divorce Agreement

The agreement should state the desire of both parties to dissolve the marriage. Even if there are no assets to divide, the agreement can specify this to avoid any future disputes.

Present the Agreement to a Notary

Once the divorce agreement is drafted, both parties (preferably accompanied by their lawyer) should present it to a notary public in Colombia.

Pay the Required Fees

There will be notary fees involved, which vary based on the notary's office. Your attorney can provide a clear idea of these costs.

Finalize the Divorce

Once the notary approves and processes the divorce, the marriage is officially dissolved. The notary will provide a new marital status certificate stating that both parties are now divorced.

Update Civil Status

After obtaining the divorce decree, it's a good idea to update your civil status on various documents, including your ID and any international documents if one or both parties are foreigners.

Remember, even in simple divorces, individual circumstances can introduce complexities. It's always beneficial to consult with a Colombian family lawyer such as Colombia Law Connection to ensure the process is correctly handled.

What happens when there are children and custody issues when getting divorced?

When children are involved in a divorce in Colombia, the process becomes more intricate, primarily because the courts prioritize the well-being and rights of the child above all else. Here's how the process and considerations change when children are involved:

Court Involvement

Unlike simple divorces without children, which can be finalized through a notary, divorces involving child custody issues must be processed through a family court. This ensures that the rights and welfare of the children are protected.

Child Custody Types:

• Joint Custody: This is where both parents share responsibilities and rights related to the child. The child can live with one parent and have visitation with the other, or the living arrangements can be more flexible.
• Sole Custody: One parent has primary responsibility and rights related to the child. The other parent might have visitation rights, depending on the circumstances.

Determining Custody

Child Support

Regardless of custody decisions, both parents are generally required to contribute to the financial support of their children. The amount will be determined based on the child's needs and the financial capabilities of each parent.

Visitation Rights

Even if one parent is granted sole custody, the other parent is typically given visitation rights unless there's a specific reason (e.g., a history of abuse) that would make it detrimental to the child.

Relocation Issues

If one parent wishes to relocate, especially internationally, it can introduce additional complexities. The moving parent must typically obtain permission from the other parent or the court.

Representation for the Child

In some cases, especially contentious ones, the court might appoint a representative or guardian ad litem for the child. This person's role is to represent the child's best interests in court.

Mediation

Colombian courts often encourage parents to attend mediation sessions to resolve custody and visitation issues amicably.

Finalizing the Divorce

Once all custody and support issues are settled, the court will finalize the divorce decree, which will include all decisions related to the children.

In all cases involving child custody and support in Colombia, it's highly advisable to consult with an experienced family lawyer such as Colombia Law Connection. We can help navigate the complexities of the process, ensure that the child's and parents' rights are upheld, and provide guidance on achieving the best outcome for all parties involved.

What happens when there are assets to split in a divorce?

In a divorce where there are assets to split, the process becomes more intricate due to the need to equitably distribute marital property. Here's an overview of how asset division works in Colombia:

Marital Property Regime

Colombia operates under a marital property regime, which means that assets acquired during the marriage are generally considered joint property. There are exceptions, such as inheritances or certain personal gifts, which might be considered separate property.

Inventory of Assets

Both parties, often with the assistance of their respective attorneys, need to create an inventory of all assets. This includes real estate, bank accounts, investments, vehicles, valuable personal property (like jewelry), business interests, and other significant assets.

Valuation

For assets with fluctuating values, such as real estate or businesses, a professional valuation might be necessary. This ensures that the division is based on the current market value of the assets.

Debts and Liabilities

Just as assets acquired during the marriage are shared, so are the debts and liabilities. These need to be identified, valued, and equitably divided as part of the divorce process.

Mutual Agreement on Division

Ideally, both parties will come to a mutual agreement on how to split the assets. This can be done through direct negotiations, with the assistance of attorneys, or through mediation.

Court Intervention

If the parties cannot agree, the court will intervene. The judge will consider various factors, including each party's financial needs, contributions to the marriage (both financial and non-financial), and the welfare of any children involved. The goal is always to achieve an equitable (though not necessarily equal) distribution of assets.

Prenuptial and Postnuptial Agreements

If the couple had a prenuptial or postnuptial agreement in place, the court would typically honor the terms outlined in that document, as long as it is considered valid and fair.

Tax Implications

The division of assets can have tax implications. It's crucial to consider potential taxes when deciding on asset division and to consult with a financial advisor or tax specialist.

Finalizing the Divorce

Once the asset division is agreed upon or determined by the court, it will be included in the final divorce decree.

Given the complexities of asset division, especially in marriages with significant or diverse properties, it's highly recommended to seek legal counsel from Colombia Law Connection. A skilled attorney at our firm can provide guidance on asset valuation, negotiation, potential tax implications, and ensuring that the division is equitable and fair.

Is an ex-partner entitled to overseas assets in a divorce?

Whether an ex-partner is entitled to overseas assets in a divorce largely depends on the jurisdiction in which the divorce is taking place, any prenuptial or postnuptial agreements, and the nature of the overseas assets. Here are general considerations with a focus on Colombian law:

Jurisdiction Matters

Different countries have different laws regarding asset division in divorce. For example, in community property jurisdictions, assets acquired during the marriage, whether domestic or overseas, are generally considered joint property. In contrast, other jurisdictions might differentiate between marital and separate property based on various criteria.

Colombian Law

In Colombia, which operates under a community property regime, assets acquired during the marriage, including those acquired abroad, are typically considered marital property and subject to equitable division upon divorce. However, assets acquired before the marriage or through inheritance or personal gifts might be considered separate property, even if they are located overseas.

Prenuptial or Postnuptial Agreements

If there's a valid prenuptial or postnuptial agreement that addresses overseas assets, Colombian courts will generally respect the stipulations of that agreement, as long as it is deemed fair and entered into without duress or misrepresentation.

Enforcement

While a Colombian court may issue a decree regarding the division of overseas assets, enforcing that decision in another country can be complicated. The ability to enforce depends on international treaties, agreements, and the laws of the country where the asset is located.

Nature of the Overseas Assets

The way the asset was acquired, its nature (whether it's a tangible asset like real estate or intangible like bank accounts), and how it was used or maintained during the marriage can influence its division. For instance, an inherited property might be seen differently than a vacation home purchased during the marriage with joint funds.

Transparency and Disclosure

Hiding assets, whether domestic or overseas, during a divorce process is typically against the law and can lead to penalties or an unfavorable ruling. Both parties are generally required to disclose all assets during the divorce proceedings.

Is an ex-partner entitled to assets obtained before we got married?

In many jurisdictions, assets obtained before marriage are typically considered "separate property" and are not subject to division upon divorce. However, this general rule can be subject to variations and exceptions, especially if the nature of the assets changes during the marriage. Let's take a look at how this works in the context of Colombian law and more generally:

Colombian Law

In Colombia, which follows a community property regime, assets acquired before the marriage are generally regarded as separate property and remain the sole possession of the original owner upon divorce. This means that your ex-partner would not typically be entitled to assets you obtained before you got married.

Commingle of Assets

A potential complication arises if separate property becomes commingled with marital property. For instance, if you had savings before marriage and then used those savings to purchase a home that both spouses live in and contribute to, the home could be considered marital property, and its value subject to division.

Appreciation in Value

If an asset you owned before marriage appreciates in value during the marriage due to joint efforts or investments from marital funds, that appreciation might be considered marital property. For example, if you owned a business before marriage and both spouses contributed to its growth, the increase in value during the marriage might be subject to division.

Prenuptial and Postnuptial Agreements

Such agreements can clearly specify how assets acquired before the marriage will be treated upon divorce. If a valid agreement exists, courts will typically respect its terms, as long as it was entered into without coercion or misrepresentation and is deemed fair.

Disclosure

Even if assets obtained before marriage are separate property, you'll usually be required to disclose them during divorce proceedings. This ensures transparency and allows the court to determine the nature of each asset.

Jurisdictional Differences

While the above provides an overview of general principles and Colombian law, the treatment of pre-marital assets can vary widely depending on the jurisdiction. Some places might offer more protection to separate property, while others might have specific nuances in how they handle such assets.

In any divorce, especially one involving significant pre-marital assets, it's essential to consult with a legal expert like Colombia Law Connection. We can provide guidance tailored to your situation and jurisdiction to ensure your assets are protected and treated fairly.

How much does a divorce in Colombia cost?

Through Colombia Law Connection, our basic divorce where both parties are agreeable to the divorce, and there are no assets to split nor children and custody issues, these start at $1,400.00. However, depending on the complexity of the case, the assets to be split, custody issues, and whether one or both parties are being difficult or over demanding, a divorce can cost upwards of $10,000.00 or more if it becomes a long process.

How long does a divorce in Colombia take?

The duration of a divorce process in Colombia can vary significantly based on the complexity of the case and the type of divorce being sought. Here's a general overview:

Mutual Consent Divorce (Simple Divorce):

This is the simpler and faster form of divorce in Colombia.

If both parties agree on all terms (such as property division, alimony, and child custody), the process can be quite swift.

Typically, a mutual consent divorce can take about 1 to 3 months. The process involves drafting and signing an agreement, which then needs to be approved by a judge or notary.

Contested Divorce (Complex Divorce):

In cases where there are disagreements over children, assets, or other issues, the divorce becomes more complex.

This type of divorce requires legal proceedings in a family court.

The duration can be significantly longer, often taking several months to a few years, depending on the complexity of the case and the efficiency of the judicial system.

Factors like custody battles, division of substantial assets, and disagreements over alimony can prolong the process.

Factors Affecting Duration:

• Legal Representation: Having experienced lawyers can sometimes expedite the process, but complex negotiations or legal challenges can also extend it.
• Court Backlogs: The efficiency of local courts and existing backlogs can impact the processing time.
• Willingness to Negotiate: In contested divorces, the willingness of both parties to negotiate and reach an agreement can significantly influence the duration.

It's important to note that these are general estimates, and individual cases may vary. For the most accurate information, it's advisable to consult with a legal professional such as Colombia Law Connection who is familiar with Colombian family law and the specific circumstances of the case.