Common misconceptions about divorce
Particularly in legal areas where people are involved, a lot of half-knowledge circulates. It is also not helpful that many people, understandably, tend to turn to the Internet as a first step when they are faced with a problem. However, since family law in Austria is very specific, one sometimes finds information that is linguistically correct but unfortunately not in terms of its content. In the practice of law, one encounters the most common errors again and again. Especially considering the fault principle that applies in Austria in divorces, it makes sense to be informed.
1. Infidelity is no longer a ground for divorce
A particularly widespread misunderstanding is that infidelity can no longer be a legal problem. The new love with someone else is openly confessed to the current spouse. This is not advisable – from a legal point of view. It is true that sexual infidelity is no longer an absolute ground for divorce, but adultery is still a serious marital offence. In Austria, the principle of fault still applies, and in the case of a disputed divorce, it is very much a question of who is “at fault” for the failure of the marriage. If one searches for the culprit, such an affair is usually not very favorable, because fidelity is an essential element of marriage. If a court decides that one person is solely or to a major extent responsible for the breakdown of the marriage, this can in certain circumstances (especially in the case of large differences in income) lead to the fact that maintenance must also be paid after the marriage. It is therefore not only morally but also legally advisable to wait until the divorce is finalized before entering a new love affair. Sometimes even investigators are hired in divorce proceedings to prove possible indiscretions of one’s partner in court.
2. A year of separation or separated residences as a prerequisite for divorce?
Again and again, one experiences people thinking they have to live separately for a certain period of time in order to be able to have an (amicable) divorce. This is not the case. It is true that a prerequisite for an amicable divorce is that the marital partnership has been dissolved for at least six months. However, this has nothing to do with separate residences, but more with the inner will to be married. This misconception persists, but it is particularly unpleasant because in Austria it is still true that a premature departure from the marital home can constitute a serious marital offence (malicious desertion). Even if it is understandable that in conflict you no longer feel like decorating the living room with your partner, your own (legal) situation is rarely improved by moving out. Theoretically, it is true that a person can move out if it is no longer reasonable for him or her to maintain the cohabitation. However, the person must then also claim and prove this. Particularly in divorce proceedings, it is often claimed that the marriage was already suffering, but that it was the move out of the marital home that finally killed the marriage. Even if you later want to assert claims regarding the marital home, moving out prematurely is not helpful, as this may suggest that you are not urgently in need of housing.
3. As a woman you always get maintenance anyway
Interesting too is the belief that as a man you are always “financially ruined” by a divorce and must pay maintenance to your wife. It is by no means the case that a woman automatically receives maintenance from the divorced husband. The most important question is first whether one of the two spouses is solely or to a major extent responsible for the breakdown of the marriage. If this is the case and the person at fault earns considerably more, he or she will in principle be required to pay maintenance to the other person. If the person entitled to maintenance has no income of his or her own, the person paying maintenance may have to give up 33% of their net monthly income. If both are employed, 40 percent of the total income of both, minus the maintenance-recipient’s own income, is used in the calculation. It is true that men often earn more and therefore run a greater risk of having to pay actual maintenance if they lose the divorce proceedings than women. Unlike child support, there is no luxury limit for post-marital maintenance for the ex-spouse. This means that those who earn a lot also pay a lot. However, there are other constellations in which post marital maintenance must be paid. This type of maintenance is not as attractive because, on the one hand, the amount is lower and, on the other, it is usually limited in time. The law, for example, provides no-fault maintenance after divorce, in the ” child-raising case ” or also in the ” sacrifice case “.
4. The woman always gets the children and can determine the custody
Since 2013, joint custody has been the standard case, and courts have been striving to maintain the custody of both parents even after divorce. Joint custody cannot be revoked unilaterally by the mother without giving reasons, as is often assumed. If, for example, joint custody is established and one parent wants sole custody, a court must make this decision. In order for a person to be granted sole custody, in practice, there must be serious problems such as no basis for communication and cooperation or behavior that endangers the welfare of the child. Moreover, the question of who sees the children and how often does not depend on custody, but on the law of contact, and here, too, the trend is clearly moving in the direction of serious participation by the fathers. “Visiting fathers” who are allowed to take the children out for ice cream for an hour once a week on Saturday are no longer the norm.
5. Help I am not listed in the land register
If nothing else has been agreed upon, the separation of property applies during the marriage. That means simplified, to each his own. If the wife earns an above-average income and can save some of it, it is her property during the marriage. However, this situation of separation of property changes in the case of divorce. This is because there is then a division of property. This means that marital property (savings and marital property) is suddenly divided. The idea is that the marital achievements, i.e. “what you have built up together”, should be divided. The concrete property status is not relevant in the division. In other words, it is not crucial in judicial division proceedings who is listed in the land register. If, for example, a home was created or built during the marriage and this was done with money earned during the marriage (regardless of by whom), the house is to be divided in the event of a divorce. No matter if one spouse or both spouses are in the land register. Likewise, if one person was employed outside the home and one person took care of (more of) the household and children, it makes no difference in the division whether the savings were fed only by the income of one. In marriage, money has no label.
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