Going through the big D and I don´t mean Durango (Dallas)….??? With the lockdowns and closures, many are at wit´s end with their spouses.
Here is the short and skinny and a general overview on divorce in Mexico in 2021.
Documents needed for all divorces:
– Birth certificates of each party. Those born outside Mexico require an apostille, or legalization with which we can do the apostille.
– Marriage certificate. Those married outside Mexico with apostille, or legalization with which we can do the apostille).
– Birth certificates of all minor children. Those born outside Mexico with apostille, or legalization with which we can do the apostille).
– Property deeds and vehicle titles for assets to be split / awarded in the judgment
All documents need to be originals or certified copies and property authenticated by the issuing authority or custodian of documents, apostilled or legalized and then translated officially.
Mexico is very particular on documents and evidence and requires all evidence to be provided up front in the proper format. Failure to do so can make you lose your right to use the evidence in court and lead to you losing your money, rights or the case even though you the other party was at fault or broke laws / rules.
– Utility bill for one of the parties showing their name (CFE, Telmex or Cable / Internet) dated within 60 days to show court has jurisdiction here
– Pregnancy test showing wife is not pregnant with a certification from the Government Health dept. This applies to all women, I have had to make my clients over 80 do it and only have had it waived for a gay divorce with two guys because the judge was reasonable.
– Parties MUST be able to appear 2 times in front of a notary, which can be scheduled within 1 weeks’ time of each other.
***Notaries must check foreigners’ immigration status in order to give services, so if your visa is expired you will have to do the 2 hearings at the courthouse which means extra months added.
– Power of Attorney: if moving party does not live in Mexico or will not be here. Some courts accept and some do not, in the end we have had them accepted. While this is not always necessary, if you aren´t here and nobody can appear for you, then you will not be able to prove your case.
Notarial and administrative divorces
(some handled in mediation centers). Administrative divorce in the Civil Registry can be done in about 30 days. Divorces done in mediation centers are similar but are sent for judicial rubber stamp so that time should be added to the process. Not many qualify for these but they can be an option if: 1. Married here under separate property, 2. Both parties will be physically present during the process, and 3. No kids or contested issues.
How fast does it all happen (Jalisco State Courts)?
Assuming courts are not closed / on vacation, any divorce filing with all required documents presented to the court, for the court to be assigned the case, accept it, publish a ruling and notify us, takes 2-4 weeks, depending on the court and workload.
Then there is a government office called the social agent (Agente Social) which looks over the file and makes any necessary comments or asks for corrections. This takes another 1-2 weeks.
If there are minor children, then the governmental child services office (Procuraduria de Niñas, Niños y Adolescentes) looks over the file and makes any necessary comments or asks for corrections. This takes another 1-2 weeks.
If it is a mutual divorce, then we meet to have a notary verify your signatures on a mutual divorce filing and then present to the court. The court then takes 1-2 week to accept it and then we present a document showing that you tried to reconcile but still want to go through with the divorce. The court then takes 1-2 weeks to accept, then puts it in line for a final judgment which then takes 3-5 weeks. ***These are 2 hearings which now can be done in front of a notary public saving much time and eliminating the need for a translator (if the notary speaks English). Notaries much check foreigners’ immigration status in order to give services, so if your visa is expired you will have to do the 2 hearings at the courthouse, which means extra months added.
If it is a contested / no fault / necessary divorce then we need to schedule with the court notifier office to serve the other party. If they are a foreigner, then a translator needs to be named and that is a few extra weeks. If not, then preparation to serve them may take 1-3 weeks.
The party will have 8 business days to respond. We wait that time period
1. If no response (waiting a week after deadline to ensure no response was presented), we then ask the court to declare them in default.
2. If they do respond, then in 1-2 weeks the court processes their response and we evaluate if they responded correctly or if they contested anything or brought out any new facts or evidence.
3. Then in a situation where the defendant has timely responded then the court sets up a conciliation hearing that can be 1-3 months away.
Following any of the above scenarios, the court then sets up a date to present evidence, as the circumstances may be, such as witness testimony, deeds, bank statements, documents, etc. If there are no kids, assets, or support issues, then it is resting upon the marriage certificate provided with the initial filing.
After the evidentiary hearing, the court then takes 1-2 weeks to accept, then puts it in line for a final judgment which then take 3-5 weeks.
Historical and current climate affecting divorce proceedings
The right to be divorced is new (a declared Human Right not just under caselaw but now in the Civil Code) and different courts interpret it different ways. Although the right is now part of the Civil Code, and it is the law of the land, there is no corresponding change in the Code of Civil Procedure, pending a potential move for a National Code of Civil Procedure, in which case it will be up to the federal legislature to enact a new code.
With all that said, some judges are old fashioned and even in a default case will set the matter for the evidentiary hearing. In which case, I would go and say we rest our case on the marriage certificate presented in cases with no kids / assets and short term marriage.
Some judges who are forward thinkers will decree the dissolution immediately upon accepting the case or when the other party is served, as it is a right and really cannot be contested.
In the end, some mutual case with assets and the like I have done in 3 months! Some contested cases drag on for years as the parties prefer punishing the other and making attorneys rich while making themselves poor.
Where does it need to be filed (Jalisco State Law)?
Mutual divorces can be filed in the court where the parties live or established their marital residence as proven by one of them providing an original utility bill in their names.
Administrative Divorces at the Civil Registry where the parties live.
With a Notary Public in the notarial region where the parties were married.
Necessary / no fault / contested divorces can be filed in the court where the parties lived, where the abandoned spouse lived, or where the defendant lives. Many courts refuse to accept filings where the defendant lives and we have filed many appeals and won on this issue. This is important because if the moving party lives out of the area or out of the country they will have no utility bill to prove that they lived in the jurisdiction so under the other theories no court would accept as it could not be proven.
COVID changes and Legal Procedure / Technology updates….
Many courts have been closed during March, April, May, June, July 2020 and January 2021. Also there have been restrictions on who can enter the courthouse and a huge backlog on an already overburdened system.
When the courts reopened in August, 2020 there were limits on who could go with an appointment system being implemented, that sounds good except when you want to check your file and the next appointment is 3 months away.
As of the writing of this article they have implemented an electronic notification system, well some court notifiers will send photos of court rulings and others will not, some courts do not have internet or new computers nor scanners.
The state transparency agency is working with the State Supreme Court to make available all sentences issued on appeal online. This should avoid corruption and also let attorneys know the courts reasoning and how they apply the law in certain types of cases.
For 2021 they are starting to have family law hearings via online video chat through a Telmex platform, it is still too new to comment.
There was an initiative presented to the Congress in Jalisco in December 2020 to create a State Advanced Electronic signature so that more could be done and not waste paper as well as present motions and documents online 7 days a week. The federal courts already have this, it will be a great advance for the state courts. Newly announced electronic system to be implemented perhaps in February, 2021 as there have been conflicting reports about having enough budget to do so.