Puerto Rico Law Blog

There was a time when a consensual divorce was not permitted in Puerto Rico. The only option that couples had to obtain a divorce was to petition it the “old fashioned way”, and only if they qualified under one of the causes stated in the PR Civil Code (Cruel Treatment, Abandon, Separation, Adultery, etc.), then could their divorce be granted by the Court.

Then, Figueroa Ferrer v. Estado Libre Asociado, 107 D.P.R. 250 (1978) came along, and in this landmark leading case, two new causes were permitted: Mutual Consent and Irreparable Rupture. By means of a comparative study between other civilist and mixed jurisdictions, Chief Justice Trías Monge and the Supreme Court’s majority arrived to the conclusion that to force a divorcing couple to vent in court the reasons that they wished to divorce eroded Puerto Rico’s Bill of Rights, and diminished the Constitutional protection that “Human dignity shall be not be violated.”

The same free will that a consenting couple had to marry, now was able to divide that very same marriage, just as long as they stipulated all the aspects of their marital union through an Ex-parte, voluntary, non-adversative petition that their marriage bond be dissolved.

A rather liberal interpretation of this very same case led many attorneys to use another corollary of the consensual divorce as an adversative cause for divorce, where under the same rationalization protected the petitioner’s dignity by not having to testify in open court as to the specific reasons for wanting a divorce. The new casuse was named “Irreparable Rupture”, and was accepted in many (not all) courts in Puerto Rico. This new casue gave way to a private, discreet, and easier form of petitioning for a divorce, without having to disclose the intimacies that led to the couple’s breakup in a potentially embarrassing forum, like a trial court.

Many detractors of this new cause were skeptic of PR Supreme Court’s viability of such a cause, and held that it was a sharp blow to our government’s interest to safeguard family unity. Regardless, it was accepted, and many divorces were “fast tracked” using this cause. The main problem lies in that the other causes for divorce, such as infidelity or cruel treatment, require a higher burden of proof, which was not always the case for divorcing couples. Perhaps the elements needed for Cruel Treatment were not present, and the couple just wanted a divorce, but one of the spoused declined cooperating for a Mutual Consent divorce. Irreparable Rupture served as a safety valve for a person who wanted a divorce, but whose partner resisted cooperating.

This brings us to our most recent case regarding this matter: Salva Santiago vs. Torres Padró, 2007 TSPR 101. PR Supreme Court dealt a deadly blow to “Irreparable Rupture”, explaining that it was only another side of “Mutual Consent”, which REQUIRED cooperation between both divorcing spouses. No longer can an uncooperative spouse be forced to divorce, if one of the causes for divorce are not present. Our highest forum holds that “if the legislator wants another cause for divorce, then it should be adopted through legislation into our Civil Code”. Our Supreme Court, in an effort to draw the line between the three separate powers granted by our Constitution, declines the creation of a new cause through jurisprudence.

Only time will tell, if Irreparable Rupture will ever be adopted as an adversative cause for divorce. As for now, the “safety valve” of Irreparable Rupture has been irreparably closed, and future divorces granted in Puerto Rico will undeniably require one of the causes for divorce stated in our Civil Code.

The question is always the same: “How can I get a divorce in PR without having to travel there?”

The situation is usually the same: a couple marries in PR, the couple separates, then one of them moves permanently to the U.S., and many years later he/she wants to continue with his/her life in the U.S., and perhaps re-marry. The trouble is that now both spouses live in different jurisdictions, and each one wants to get on with his or her life…

The answer is not THAT simple.

In order to obtain a divorce in PR, there are two rules:

Rule #1: The cause that gives way to the divorce occurs in PR.

or

Rule #2: At least one of the spouses has lived here for more than 1 year before filing for the divorce.

So, let’s suppose that we’ve gotten over both hurdles. Let’s suppose that the couple married in PR, one of them still lives in PR, or has lived here for the last year, or maybe the causes to file for divorce have happened (more on those later). How can you get a divorce without coming here?

Two possible ways: One, you can petition for a Mutual Consent divorce if both spouses agree on it, or two, you plan a short trip to PR. I know, I know, the whole deal is NOT to visit PR, and leave behind your business or your family in the US. But bear with me, if no one comes to PR, or your spouse (soon to be ex-spouse) wishes to cooperate, then you don’t qualify for a divorce in PR. Remember Rule #2?

In the first option, both parties can submit sworn statements, along with the divorce petition, just as long as they both agree on every single matter related to the divorce (child support, custody, properties, debts, etc.) A court hearing is held, and the resident spouse can testify as to the details of the petition. Since this is a non-adversarial petition, the court usually grants the divorce immediately. When couples get along, this is the fastest, cheapest and best option.

But sometimes couples don’t always get along, so we arrive to our second option, which is filing for a divorce “the old fashioned way”. If your situation falls into one of the causes for divorce in Puerto Rico: Cruel Treatment, Abandon, Separation (for more than 2 years), Adultery, Substance or Alcohol Abuse, Incurable Mental Ilness (for more than 7 years), and several others…), then you HAVE to go through the whole process. A lawsuit, summons, hearings, the whole deal…. If the resident spouse is willing to testify, then maybe, and only maybe you won’t have to travel to PR. Why maybe? Because the court can summon the petitioner at any moment. This is rare, but it does happen. I usually advise my clients whose only option is to file for a regular divorce, either because they can’t locate their separated spouses, or because they have substantial assets or properties in PR, to buy an airplane ticket for when the hearing (which is usually just one) is set. This way, you can come in, attend the divorce hearing, spend a night or two in Puerto Rico, enjoy the beaches and the sun, and leave divorced. Aside from that, there aren’t too many options to file for a divorce in Puerto Rico…

Of course, you can always file for a divorce in your home state, but I can’t write on that, since the title on the top of this web page has “Puerto Rico” written on it.