Marital and family law especially treats the rights and duties within relationships between spouses and those between parents (resp. legal guardians) and children. It is especially based on the Austrian Marital Law, the Registered Partnership Law as well as the Austrian Civil Code. The marriage at the registrar´s office (the church wedding itself is not legally binding) or the registered partnership, connects the partners more closely in personal as well as economic matters and their further life management. Apart from marriage and registered partnership, some laws also refer to other ways of living together (marriage-like relationships, partnerships).
If a marriage should or must be dissolved, there are several possibilities. A consensual divorce could generally be concluded quite inexpensively without a legal counsel. However, in order to avoid regretting premature decisions and concessions under pressure later on, it also pays to consult a competent divorce lawyer in this case. Competent help from the divorce lawyer is already expedient in the out-of-court settlements. At least when a contested divorce cannot be avoided and a divorce suit is filed for, a lot depends on the lawyer´s negotiation skills and his/her experience in divorce proceedings.
What must be considered here, is that the regulations which need to be made now regarding custody, child support resp. alimony, have a long-term and sometimes even negative effect on the economic situation of the respective divorce party. Including a lawyer means significantly encouraging a preferable regulation.
Every situation needs to be observed individually. We will gladly take the time it takes to also discuss your situation extensively. Thus, please make an appointment for a noncommittal informational interview.
The least emotionally disturbing type of divorce is the consensual divorce, which is filed for by a mutual divorce petition at the district court. Here, both spouses are willing to divorce. The conjugal relationship must have been dissolved for at least 6 months and the spouses must agree on the significant consequences of the divorce, especially regarding custody and support of the children, the division of the martial assets and possible alimony payments.
In contrast to the consensual divorce, the divorce petition is only filed by one of the spouses in a contested divorce. Here, a reason for the divorce must exist, which the other spouse caused culpably and which led to the irretrievable breakdown of the marriage. It is indeed possible, that both parties caused a reason for divorce. The question whether there is culpability and who acted culpably to what extent is determined in the divorce proceedings and recorded in the divorce decree. The question of culpability has an effect on the obligation of alimony payments.
The division of marital assets and marital savings must be settled in a separate proceeding.
Child support (alimony) is the parents´ support obligation towards their children. If a child lives with one parent, resp. with both parents, it is entitled to support in kind, otherwise it is entitled to money support. The amount of money depends on the income of the respective parent, the child´s age, other support obligations of the parent and other factors. The amount of money support can be agreed upon or decided by court.
The spouses´ alimony can be agreed upon in the course of the divorce. Should no agreement be made, the claim for maintenance support depends on the culpability, income, other support obligations and further factors.
The legal guardian (see custody) manages alimonies for the underage child. However, these funds may only be used for the child´s wellbeing.
Custody (legal term for care and supervision) regulates parental rights and duties for care, upbringing, wealth management and representation of children. Both the single custody of one parent as well as the shared custody of both parents is possible. The concrete form (shared custody or single parent custody) as well as the determination and transfer of custody depends on several prerequisites.
In a “custody case” it is negotiated, who is entrusted with the custody should a shared custody not correspond with the child´s wellbeing.
The contact right is the right of personal contact between parents and children (or grandparents and grandchildren) and between children and other people who are important to them. In the event of a separation or divorce, the contact right can either be agreed upon by the parents or decided by court.
The jurisdiction develops guidelines which consider the child´s age regarding extent and intervals of visits/contacts.
Children, who are not yet able to support themselves, have a right to be supported by their parents. As long as the child is under age, the parent who cares for the child claims child support from the maintenance debtor.
In case the parents live separately, the parent who does not live together with his/her child, must pay money for the child´s support. The amount of the support first of all depends on the net income and maintenance obligation for other children of the maintenance debtor. The percentages of net income of the maintenance debtor are scaled according to the child´s age. Possible payments in kind such as school costs or the financing of an apartment are added to the money claims. A minimum support (the so-called “Regelbedarf”) and a maximum support (the Playboy limit) must be considered.
Generally, even after a divorce, the joined custody of both parents is desired, provided the parents can agree on the fact in which parent´s household the child should mainly live. However, it is also possible that the spouses agree on the sole custody of one parent. If there is no agreement regarding custody within a certain appropriate period, the court must decide, whereby after a change of the circumstances a new regulation of custody can be applied for at court. The court must always consider the child´s wellbeing.
After the divorce, the claims for support, the division of marital property and the marital savings as well as the name changes and consequences regarding social insurance law and tax law have to be cleared. The claim for support largely depends on the sentence regarding culpability as well as the life circumstances of the spouses.
According to the law, there are four possibilities of divorce. Apart from the consensual and the contested divorce, there is the divorce for other reasons (among them the divorce without culpability of the spouse, e.g. due to illness) and the divorce due to the dissolution of the common household since at least three years. The prerequisite is that the marriage has broken down irretrievably.
Furthermore, a marriage can be dissolved or declared void. You can plead nullity if for example one of the spouses was not marriageable according to the law. The annulment of a marriage serves the purpose of dissolving a marriage which was contracted under misleading circumstances. A typical case would for example be marriage fraud by a marriage-impostor.