Until the mid-1960s a ‘Mexican divorce’ was seen as a quick and easy way to end your marriage, particularly for US citizens. Times have changed, and Mexico now offers a ‘no-fault’ divorce option, although the laws do differ slightly across Mexico’s 30 different state jurisdictions. So how does divorce work in regards to Mexico? What happens to your children when your marriage ends? And how are financial arrangements dealt with? Here we provide a guide to divorce in Mexico.
Divorce in Mexico
In order to get a divorce in a Mexican court, you must have a marital domicile within Mexico. This law was partly introduced to stop couples from the US nipping across the border to secure a quick and easy divorce.
While the laws of the various states of Mexico are similar to one another, they do differ from state to state and you may find there are some legal idiosyncrasies in different jurisdictions. Each state has its own divorce code, and so you will need to ensure you understand the family law of the state where you live.
To divorce, you must file your petition at the court in the state where you live. The Civil Code of that state will be applied, and each state’s Civil Code establishes the grounds for divorce in that specific territory.
According to the Civil Code of the Federal District, you do not have to establish ‘fault’ to get a divorce in Mexico. There is a ‘no-fault’ option available, as long as you have been married for at least one year.
Child parental authority, custody and support following divorce in Mexico
If you can agree on the arrangements for your children when you divorce, then you can submit this agreement to the family court for approval. If you can’t agree then the court will make an order.
The law in Mexico makes a distinction between ‘parental authority’ (patria potestad) and ‘custody’ (guarda y custodia).
‘Parental authority’ is the powers/duties ‘conferred upon those who exercise them for the protection of non-emancipated minors with regard to their person or property’. This includes ensuring your child’s physical and psychological health, encouraging personal development, showing affection, and determining standards of conduct.
On divorce, a judge will normally award parental authority to both parents. It is rare that one parent would be denied parental authority.
‘Custody’ refers to the ‘personal care of a minor child’ and relates to where the child should live. A court will generally award custody to mothers (particularly for children under the age of seven) unless there is a risk to the child in this situation.
The parent who is not awarded custody will normally be awarded contact with the child.
Your child’s views will normally be considered when the court makes an order, although the judge does not have to follow your child’s wishes.
The parent without custody will normally have to financially support the child. The child maintenance calculation differs from state to state and is normally based on:
- the requirement of the parent with custody
- the ability to pay of the providing parent
- your lifestyle.
Mexico is a signatory to the Hague Convention on Child Abduction. This means that if your child is taken out of Mexico without your consent, or taken to Mexico from another country, you can seek the help of a formal authority to ensure the safe return of your child.
However, Mexico has been heavily criticised for its non-compliance in adhering to the Convention.
Part of the reason for this is the Mexican ‘amparo’ proceedings. This legal procedure allows any Mexican citizen to file an amparo claiming that an authority is violating their constitutional rights. As a parent can file an amparo at any time, this blocks the legal procedures until the case is heard. This can take months or even years, delaying the return of a child.
How your property is split on divorce in Mexico
If you can’t agree on the division of your assets following your divorce, the court can make an order based on the property ownership regime of your marriage. The Civil Code of the Federal District outlines two types of property ownership regimes in Mexico:
- Common property
- Separate property.
Under this regime, all assets acquired during your marriage are owned by both spouses equally.
Exceptions include property you acquired before you got married, inheritances, donations, gifts during the marriage, items you need for your profession, and all objects for your personal use.
Under a separate property regime, all the assets you acquired during your marriage belong to the spouse that acquired them.
Here, if you are the spouse who was in charge of taking care of the home and/or children, the court can award you compensation up to 50% of all assets acquired during the marriage. Recent judicial precedents have seen courts protecting the spouse who could not obtain assets during the marriage, often as they remained at home to care for children.
Alimony following divorce in Mexico
The court will also decide on the amount of spousal maintenance that is payable. Factors that the court will consider include:
- the claiming spouse’s need for support
- whether the spouse lacks assets
- your job prospects and your ability to get a job
- your age and health
- your respective financial situations
- the length of the marriage.
Alimony will end if the claiming spouse lives with someone else or remarries. Maintenance is also only payable for a period equal to the duration of the marriage.
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