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Post-marital maintenance?

People marry for love. People also marry because they want security and stability. But how much security is provided through marriage? Maintenance during the marriage or even afterwards – is it worth fighting over? The idea of maintenance after divorce is rather mythical among the general population and there are many misconceptions about it. Many people believe that after a divorce you automatically get maintenance from the higher-earning ex. In practice, one also experiences that people only “want what they are entitled to” and then have to realize that it is not that much. On the other hand, in the face of an impending divorce, people are sometimes reluctant, to say the least, and not very keen on the idea of having to pay maintenance for a very long time. What is the actual legal situation with post-marital maintenance?

The most important facts about post-marital maintenance

A differentiation must be made between maintenance during a marriage and maintenance after a divorce. During a marriage, each person should contribute to the common life to the best of his or her ability, whereby being a homemaker is also to be considered a full contribution. One could also say that in a marriage, no matter who earns money, both should benefit from it. If one person is a homemaker and is therefore not gainfully employed, or if one person takes more care of the joint children and therefore works only a little outside the home, this person theoretically has a maintenance claim against the other, higher-earning spouse. If, for example, the husband mainly takes care of the household and children while his spouse earns well, she, newly in love and freshly moved out of the marital home, cannot simply get rid of her maintenance obligation towards her husband. Admittedly, the marriage is usually at an end when a person tries to enforce spousal maintenance in court by means of a lawsuit.

At fault divorce – what does that have to to with spousal support?

The regulations on post-marital maintenance are complicated in Austria. The most important question is first of all whether one of the two spouses is solely or predominantly to blame for the divorce. If this is the case and the person at fault earns considerably more, he or she will in principle be liable to pay maintenance to the other person. The person who is divorced at fault may therefore still have to pay for the other person even after the divorce. 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 the monthly net income. If both are employed, 40 per cent of the total income of both, minus the alimony recipient’s own income, is used for the calculation. Unlike child maintenance, there is also no “luxury limit” for post-marital maintenance for the ex-spouse. This means that if you earn a lot, you pay a lot. Disputes about maintenance usually only pay off if the ex-spouse earns well. On the other hand, the current principle of fault also means that people who are dependent on post-marital maintenance have to go through contentious divorce proceedings.

Is there also post-marital maintenance without a fault-based divorce?

As a rule, one is only entitled to the above-mentioned reasonable post-marital maintenance if the other person is to blame for the breakdown of the marriage. If the court is of the opinion that both are to blame for the breakdown of the relationship, the needy, income-less spouse can be awarded so-called equitable maintenance, which is, however, small and only intended as a bridging aid. However, there are other, no-fault constellations under which post-marital maintenance must be paid. This maintenance is not as attractive as the fault-based maintenance because, on the one hand, the amount is smaller and, on the other hand, it is usually limited in time. The law provides for post-divorce maintenance regardless of fault, in the “child-rearing case” or also in the “sacrifice case”. In the case of child-rearing, the issue is that a person cannot reasonably be expected to maintain him/herself after the divorce due to the care and upbringing of a common child. This unreasonableness of self-preservation is legally presumed until the child reaches the age of 5, although in justified cases there may also be a longer need for maintenance.

In the so-called “sacrifice case”, the issue is that a person has managed the household or also cared for joint children or relatives during the marriage and is therefore not (any longer) able to maintain herself. If, for example, a woman manages the household for many years and, in her mid-50s, takes care of her mother-in-law, she will have poor professional chances in the case of divorce due to her longer absence from the labour market and her age. It should be noted, however, that particularly serious marital misconduct or self-inflicted indigence can stand in the way of a maintenance claim even in the cases mentioned here.

In summary, it can be said that in the context of a pending divorce it is still smart to evaluate one’s own chances in possible divorce proceedings and to take them into account accordingly in one’s own willingness to settle.

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Spousal support – the money after the divorce – Law & Beyond (lawandbeyond.at)

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