Divorce often raises many questions. Although there are already different legal consequences between separation and divorce, they are mistakenly equated. Below you will find an overview of common errors and mistakes in divorce proceedings:
- Mandatory separation period: It is often assumed that divorce requires a separation period. However, Austrian law does not provide for such a period. However, in order to be able to divorce by mutual consent, the marriage must have been broken for at least six months.
- Sole custody: No one automatically receives sole custody of the children. Even if this was agreed before the divorce, it is subject to review by the court. As a rule, joint custody remains the rule in Austria. Unless there is a concrete risk to the child's welfare - this would justify a transfer.
- You get what you have invested: For the post-marital division, everything that was acquired after the marriage, marital property, savings or debts are also subject to division. In principle, these assets must be divided equitably, which usually means a 50:50 split.
- Divorce only with consent: It is often assumed that a divorce can only take place with the consent of the partner. This is generally true for divorce by mutual consent. In all other cases, one spouse can initiate the divorce alone.
- Mine is mine: If you save a certain amount during the marriage, it must be divided according to the principles of division. These apply regardless of whose name the savings are in.
- Moving out of the marital home: If you move out of the marital home without the express consent of your partner, this may constitute serious marital misconduct. This also applies if it is considered that the marriage has already broken down.
- New acquaintances: In many cases, a new relationship is entered into on the assumption that the marriage has already broken down. Since neither the breakdown nor the reason has been established in court, this can lead to serious marital misconduct.
- Maintenance payments: An obligation to pay maintenance may already exist while the marriage is still valid. In principle, maintenance must be paid in kind. This entitlement is only converted into monetary maintenance after the domestic separation.
- The dog stays with me: If the dog or pet was acquired during the marriage, the usual division rules also apply to it. It is irrelevant who actually bought the dog. If this remains disputed, the court will decide. (see also our blog article).
- Draw up a divorce agreement yourself: In Austria, there is generally no obligation to hire a lawyer in divorce proceedings. However, the divorce agreement should at least be drawn up or checked by a lawyer. It often depends on the details. If real estate is transferred, the taxes and fees must be calculated by a lawyer anyway.
