Puerto Rico Law Blog

Child support in Puerto Rico can be ordered, revised or modified in any of two ways: through ASUME or through court.

ASUME is the main government entity for child support in Puerto Rico.

ASUME, an acronym for “Administración para el Sustento de Menores”, which directly translated reads “Administration for the Sustenance of Minors”, is the administrative entity whose main obligations are the management, modification and enforcement of child support determinations in Puerto Rico. Among the most important tasks that ASUME carries out is to execute orders to comply with child support for children living with their custodial parents in our jurisdiction.

On the other hand, any court in Puerto Rico is able to modify and enforce child support determinations. These specialized courts have a separate division who employ child support examiners who use their expertise to recommend judges on the correct procedure and specific findings of court ordered hearings held to calculate and determine how much child support is to be ordered to the non-custodial parent.

Why the difference? Child support is of such a great importance in our jurisdiction, that both venues have the legal right and obligation to guarantee that no child goes without sustenance. Therefore, great deference is granted by every arm of the state to make sure that these determinations are granted and carried out in the fastest, easiest, and most precise way.

What happens when the non-custodial parent lives in the United States?

Every state and U.S. territory is independent, which means that each one benefits of being able to govern itself separately from each other. All of them are linked by a federal government, which guarantees that every legal process is carried out as evenly as possible between each state. Federal laws usually have preference over state laws, but they must be balanced in their execution by both state and federal governments.

In order to make sure that child support determinations in each state are carried out by other states, Congress drafted the Uniform Interstate Family Support Act, or UIFSA. This law allows the enforcement of child support determinations from one state or territory in another state. The UIFSA also requires that child support enforcement be granted equal treatment, regardless of which state ordered it, and which state must enforce it. It provides methods such as wage garnishment, debt collection, freezing of assets and several other economic means of assuring that the ordered child support is retained from the non-custodial parent, and ends up where it is needed the most.

The UIFSA applies to Puerto Rico child support orders, thus they can be enforced in any of the 50 states. It does have one caveat: The child support must be ordered by a court.

ASUME, with its expedited and informal approach which helps to order, modify and enforce child support, is the most common venue for child support petitions. These petitions are informal, usually do not require a lawyer, and can be granted through a couple of uncomplicated steps. Court ordered child support must comply with the usual legal formalisms that any other petition must include, such as a pleading, a summons and the same strict due process of any other legal process.

Child support petitions and reviews through ASUME only have to comply with a few letters written to the parties involved, and can be granted in a much shorter time. They are not hindered by the overburdened court schedule, and benefit from a presumption that the process was carried out correctly by law, but without the strict adherence requiered by the court process. Usually, a few letters later, and the process is over in a few weeks, instead of months.

Once ASUME orders that child support be granted to a minor, this determination must be validated in court for it to be enforceable in another state under the UIFSA.

If the non-custodial parent lives in another state, it is not until a court in Puerto Rico grants validity to the child support determination from ASUME that the UIFSA comes into play. Since the determination has been through ASUME, courts grant these deference and assume that they have validly been scrutinized. The court order is almost always granted, and therefore this determination is now enforceable by local child support authorities in other states. Now, local authorities can collect the child support in any way that the local law permits.

In my experience, non-custodial parents usually receive a letter from ASUME, along with a PIPE, and do not pay much attention to the request for information that must be submitted to ASUME. Some of them disregard this letter, thinking that it will go away, since Puerto Rico laws do not apply to them in another state. While this may not be completely true, the UIFSA grants ASUME the right to mandate child support, and ASUME can and will do so, with or without the parent’s input, representation or approval. A few months later, they receive a letter from their local child support agency informing them that their wage will be debited the amount due monthly for child support, and call me in outrage, only to hear that it may be too late to review their correctly determined child support. Sometimes, there are options still available. In every case, the best practice is to participate in the process from the beginning, and insure that it is carried out in the best interest of everyone involved.

Exclusive distribution rights in Puerto Rico are granted under Law Number 75 of June, 24, 1964 (10 L.P.R.A. § 278, et.seq.). This law, drafted at a time when marketing and importation strategies depended on the commitment of foreign and stateside large corporations to introduce new essential consumer products into the Puertorrican market, intended to grant exclusive rights over the distribution of their products to a dedicated few who invested time, effort and money in return for their continuous flow of merchandise into the island.

This law favors local distributors by establishing controvertible presumptions against the unfair termination of contractual obligations by their foreign and stateside suppliers, by creating causes of action for unfair termination, and by prohibiting quota based sales. In a jurisdiction where verbal contracts are permitted, this creates a risky endeavor for wholesale enterprises seeking to establish themselves in new markets, such as our own.

In just a short matter of time, a simple product purchasing relationship can create an expectation of product exclusivity which forbids the distributor from expanding their sales within our area, without the already established “exclusive local distributor” permitting the possible new and larger ventures. In addition, the loosely defined term “just cause” necessary to terminate the contractual obligation under Law 75 leaves the matter to be interpreted in court, instead of providing an faster and cheaper alternative to exclusive distribution contract dispute resolution.

The safest and best practice for stateside corporations already selling their products to local resellers is to review their contracts to “Law 75 Proof” them. For new enterprising companies wishing to include Puerto Rico into their venues, the safest option is to draft a detailed and precise contract that includes alternative dispute resolution options, limitations of jurisdiction and clauses which reserve the right to sell their products on a non-exclusive relationship.

Otherwise, they run the risk of facing several years of costly litigation, and seeing how a fruitful consumer market such as Puerto Rico turns into a sour venture for everyone involved.

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.

Jeez, has it been THAT LONG?!?! It’s been almost 4 months since I last blogged, and I’ve been missing it since.

I was relocating my offices to Ponce, and the whole remodeling/moving/setting up took a little longer than expected. But I’m back to my “normal” routine, and I’ll be blogging much more in the time to come.

Expect a few comments on Puerto Rico’s Supreme Court’s step away from the no-fault divorce, the loosely translated “Irreparable Rupture”, which is as close as we had to “Irreconcilable Differences”. The only option for a fast track divorce is Mutual Consent, and two dissident opinions from the Court’s two women make this opinion from a rather conservative court a landmark in Family Law Jurisprudence.

Now that we’re into the Family Law topic, another hot item I’d love to cover is the jurisdictional problem confronted by ASUME, the PR Child Support Administration when enforcing child support determinations through the UIFSA, given the fact that Puerto Rico is a Mixed Jurisdiction Territory. I’ve come across several unresolved questions when dealing with Child Support across jurisdictions, especially when they come from a Territory, instead of a State. I’ll be adding a little to that topic later.

Last, but not least, I’ll be explaining how successions operate in Puerto Rico. This is probably the most sought after information in my practice, since approximately 75% of it is dedicated to wills, estates and successions. The most important operation in Puertorrican estate matters is the hereditary order, and the birth of the post-mortem (after death) community. The order begins simple, but it starts complicating itself exponentially. The “who-gets-what” question is possibly the hottest topic in my practice, so I’ll be dividing that topic into several posts, because it becomes a fascinating and complex operation of family ties and dates.

Stay tuned, and it’s good to be back.

English:

I’d like to announce that our new website is up and running, and it’s the Spanish version of our original site, www.frankfaslaw.com.

For those of you that don’t know us, we’re a small legal practice in Ponce, Puerto Rico that deal with both Civil and Criminal matters, serving plaintiffs and defendants in areas such as Contracts, Small Business Law, Estates and Wills and Family Law.

In response to our geographic area, which is mainly Spanish-speaking, we’ve set up a new website, www.BoricuaLaw.com, to be able to reach our mainstream market here. Although the main purpose of our web identity is to advertise outside of Puerto Rico to individuals or businesses that may need legal services in our jurisdiction, the undeniable truth is that our society is becoming more Internet dependent. In response to this, and to many requests that we publish a website in Spanish, we decided to create our Spanish language website.

Please visit us at www.BoricuaLaw.com.

Spanish:

Nos complace en anunciar que nuestra nueva página de Internet ya está disponible, y es la versión en español de nuestra página original, www.frankfaslaw.com.

Para aquellos que no nos conozcan, somos un bufete pequeño situado en Ponce, Puerto Rico, que trabaja con casos de índole Civil y Criminal, sirviendo a demandantes y demandados en las áreas de Obligaciones y Contratos, Pequeños Negocios, Herencias y Testamentos y Derecho de Familia.

Respondiendo a nuestra situación geográfica, la cual es mayormente hispanoparlante, hemos preparado una nueva página en la Internet, www.BoricuaLaw.com, para poder llegar hasta nuestro mercado inicial aquí en Puerto Rico. Aún cuando el propósito inicial de publicar una página de Internet era el alcanzar un mercado fuera de Puerto Rico, a individuos y empresas que necesitaran servicios legales en nuestra jurisdiccion, la verdad incuestionable es que nuestra sociedad puertorriqueña utiliza la Internet más cada día. Como respuesta a esto, y a múltiples solicitudes de un portal en español, hemos decidido crear una página en español.

Por favor, visítenos en www.BoricuaLaw.com.

A question I am asked frequently is how can a contract not have consideration in Puerto Rico. Due to our civilist tradition, contracts in Puerto Rico are defined as a personal obligation “to give, do, or not do”. This vague definition protects agreements that lack consideration. A free contract in our jurisdiction has as its purpose “the mere liberality of the contractors”.

The problems usually arise when U.S. based corporations conduct business in Puerto Rico. Perhaps as a precaution, contracts are assigned a nominal $1 to be able to qualify as a “contract” by common law standards. These companies should rest assured that even without consideration, a free contract is valid and enforceable in Puerto Rico.

Contracts, according to our standards, reflect the voluntary will to act and dispose of our present and future estate by consenting to another party to act or limit one’s own acts formally. Being this the first of three elements necessary to qualify a contract in Puerto Rico (consent, object and cause), anyone capable of legally acting can enter a contract that would entail no patrimonial reciprocity whatsoever.

So, the next time you see a “free contract” without any consideration in Puerto Rico, don’t worry over it. It’s still a valid contract…