The decision often takes months to develop. And then suddenly everything happens quickly: one argument too many, moving out, a message to your partner. It’s especially during this phase that mistakes are made that are difficult to correct later on.
This article explains what you should clarify before taking the first step. It is not a substitute for legal advice, but it will help you be well-prepared for your meeting with a lawyer.
Whether by mutual agreement or in dispute: The path determines everything
In Austria, there are two main ways to get a divorce. In a divorce by mutual consent, both spouses file a joint petition. A prerequisite is that the marital relationship has been dissolved for at least half a year. In addition, both spouses must have reached an agreement on all essential matters: spousal support, custody, visitation rights, child support, and the division of assets and debts.
If this agreement cannot be reached, the divorce proceeds as a contested case. In such a case, one spouse files a lawsuit, and the court determines which party is at fault for the breakdown of the marriage. Determining fault is important because it plays a role in deciding the amount of spousal support after the divorce.
Incidentally, custody and the division of assets are not automatically decided as part of a contested divorce. There are separate proceedings for these matters, which must be filed for separately.
Back up your documents
As long as you're still living under the same roof, you usually have easy access to important documents. That often changes abruptly as soon as the separation is officially announced.
Make copies of everything you are legally entitled to access: marriage certificate and the children’s birth certificates, proof of income for both spouses, bank statements, loan and lease agreements, the lease agreement or an extract from the land registry, insurance policies, and documents related to savings accounts and securities.
However, do not take any originals that belong to someone else. And do not access other people's accounts or cell phones. This can have legal consequences and damage your credibility in court.
Get an overview of your assets
In a divorce, the marital property and savings are divided. This includes, for example, the marital home, the car, furniture, savings, and securities. As a general rule, the date on which the marital relationship ended is the determining factor.
Debts are just as important. If you took out a loan together, the bank remains bound by the contract, regardless of what you agree upon in the divorce. However, the court may rule that, between the two of you, one of you pays the debt alone, while the other remains liable to the bank only as a secondary guarantor (Section 98 of the Marriage Act). This option is often overlooked.
Don't move out too soon
Many people want to escape the tense situation at home and move out on a whim. This is understandable, but it can have drawbacks. Moving out without a valid reason can be considered a breach of marital obligations. If there are children, it also creates a de facto situation regarding the children’s living arrangements.
To find out what you need to know about this, read our article “Separation: Who Has to Move Out of the Marital Home?”
Think of the children first
After a divorce, joint custody generally remains in effect. However, the parents must determine with whom the child will primarily live. Only if it is in the child’s best interest may the court grant sole custody to one parent.
In the case of a divorce by mutual consent involving minor children, both parents must first attend a parenting counseling session and submit the certificate to the court.
Keep the children out of the conflict. Courts pay close attention to which parent fosters the child's relationship with the other parent and which parent hinders it.
Plan for the transition period financially
Months often pass between separation and divorce. Rent, loans, insurance, and child-related expenses continue to accrue during this time. Clarify early on who pays for what and whether you are entitled to spousal support or required to pay it.
Read more in our article , “Between Filing for Divorce and the Divorce Becoming Final—Who Pays the Ongoing Costs?”
Don't write anything you'll regret later
WhatsApp messages, emails, and social media posts regularly end up in court as evidence in divorce proceedings. An angry message sent at midnight can hurt your case for years to come.
Communicate in a factual, concise, and clear manner in writing. If that is no longer possible, have your attorney handle the communication.
How long does a divorce take?
A divorce by mutual consent can be finalized within a few weeks of filing the petition, provided the agreement is complete. A contested divorce depends on the course of the proceedings. With witnesses, expert reports, and appeals, it can drag on for years.
That is another reason why it is worth seriously considering a settlement before filing a lawsuit.
Get advice early on
In district court, there is no requirement to be represented by an attorney in a divorce proceeding. Nevertheless, it is advisable to seek legal advice before taking the first step. Many problems arise not during the proceedings, but in the weeks leading up to them. A poorly drafted divorce agreement is almost impossible to correct later on.
Are you considering getting a divorce and want to know where you stand? As divorce attorneys in Vienna, we’d be happy to advise you in a personal consultation.
This article is intended to provide general information and is not a substitute for individual legal advice.
