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Emergency Kit – Divorce

If the future together does not develop according to plan and one or both of the spouses are seeking a divorce, this means a challenging situation for many people. First of all, it makes sense to reach an agreement, especially in the context of family law. However, in the event that no agreement can be reached, careful preparation is recommended. This article is intended to give you an insight into the topic, but of course does not replace legal advice.

1. I or my spouse are considering divorce – what to do now?

Don’t act in haste. Even if your urgent impulse is to move out temporarily to clarify the situation, from a legal point of view it is advisable not to do so. Don’t move out too quickly. This may be considered serious marital misconduct.

2. Find out and document the situation

Try to stay calm and get an overview of the situation. Do you know the economic situation of the family and your partner? Review property records, bank records, payslips, etc. Take photos. Is there any correspondence or evidence of an extramarital relationship between your partner and your partner? Document this. If you have been injured by your partner as a result of physical assaults, have them diagnosed by a doctor. Keep a diary about your life together, should this become unacceptable for you. Document your partner’s behavior. Create memory logs.

Get legal support if you are unsure whether it would be better to take action yourself or wait and see to secure your claims. Think about which information you want to share with which mutual acquaintances about your further plans. And very important: change your passwords! Both on social media platforms and access to your phone, laptop, email accounts, online banking, etc.

3. Keep your nerve

Even if your partner threatens you in the heat of the moment, for example, that you will no longer see your children or that you will look through your fingers financially: keep calm and consider that your partner will probably also be in one state of excitement. If, at the end of the day, no amicable clarification is actually possible, there is still the option of enforcing claims in court if necessary.

4. A legal overview

4.1 Mutual Divorce

Most divorces in Austria are amicable (after sometimes lengthy negotiations). In order for the way to an amicable divorce to be open, you must have been separated from your partner for at least six months (note, this does not mean separated at home) and the marriage must be “terminally broken”. In addition, agreement must be reached on the following points:

  • The division of marital assets and marital savings or debts

  • Post-marital alimony

  • If necessary, the custody of the common children

  • If applicable, the maintenance obligation towards the common children

  • If necessary, the future design of the right to contact with children

  • If there are minor children together, the spouses must certify that they have taken part in parent counseling

4.2 Disputed Divorce

A contested divorce becomes necessary if either no agreement can be reached on the above-mentioned consequences of the divorce or if one spouse is unwilling to divorce . A disputed divorce can often only lead to a divorce of the marriage. It is therefore possible that further proceedings (such as apportionment or maintenance claims, or the regulation of custody) must be conducted after the divorce has taken place .

i) Litigation at fault

If a spouse has behaved in a manner that is to be regarded as serious marital misconduct and the marriage has thus broken down so severely that the restoration of a life partnership that corresponds to its nature cannot be expected, the other partner can seek a divorce sue the fault of the partner.

Caution: It can represent serious marital misconduct, for example, if you simply move out of the joint marital home in the event of a dispute.

ii) Divorce due to dissolution of the household

If the spouse who is unwilling to divorce has not committed any serious marital misconduct, after three years of dissolution of the domestic, marital community (also by the guilty spouse) a divorce can be filed . This means that, for example, the adulteress living with her boyfriend can ask for a divorce after three years. In this case, too, the marriage must be irretrievably broken and the restoration of a life community that corresponds to its nature cannot be expected.

iii) Disputed divorce on other grounds

Even if there is no marital misconduct, a divorce can be requested in court for reasons such as mental illness, contagious or disgusting illness of the partner. The marriage must be incurably broken and the restoration of a life community that corresponds to its nature cannot be expected.

5. Divorce at any cost?

After both parties have been hurt, there may be a great desire for a quick divorce and thus a solution to the situation. However, there are sometimes far-reaching consequences associated with a divorce. These include, for example, social security and pension law consequences that must be observed. Likewise, issues such as custody, any post-marital maintenance and the division of marital assets and marital savings must be considered. It is best to clarify this with a knowledgeable legal advisor in advance.

6. Custody

If parents are married to each other (at the time of birth) or marry each other after the birth of the child, both parents are in principle entitled to exercise custody. In the course of a divorce, it must be clarified whether both parents should continue to have custody or whether one parent should exercise sole custody in the future. If both parents do not live in the same household and if both parents are entrusted with custody, it must also be determined which parent should primarily look after the child.

7. Right of Contact

The right of contact refers to the right of the child and the right of the person who does not live in the same household with the child to have regular contact. If an amicable settlement between the parents does not appear possible, the court can deal with the issue.

8. Can Law and Beyond help me with my family law difficulties?

Of course. Feel free to make an appointment for a consultation. We support you in finding the best solution for you.

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