Austria Divorce


By Gretchen Lang

When Sylvia met her future husband, she was "swept off her feet." A native of Italy, she happily emigrated to her husband's home country of Austria, where she learned the language and tried to fit in. When her daughter was born, she registered her as an Austrian citizen.

But the marriage soured and Sylvia found herself in a country whose laws she didn't understand - laws that could take everything from her, including her child.

For expatriates, and especially for those who have emigrated to another country, the collapse of a marriage can bring a host of unforeseen woes. Women who emigrate to their husband's country often find themselves especially vulnerable in case of divorce or separation, which can leave them with no income and no home. Some may encounter a bias against foreigners in the courts.

Any expatriate, whether an immigrant or not, who is contemplating divorce abroad should research the laws carefully, legal and family-crisis experts say. In fact, the best time to prepare for a divorce abroad, they say, is before you get married. But for many, the disaster down the road is hard to foresee.

"He was my everything," Sylvia remembered. "If I'd have known, I would have done it differently. I was so naive."

Divorce is difficult under any circumstances, but hammering out alimony, child support and child custody in a foreign court can be truly daunting.

Ideally, expatriates and immigrants should choose where they want to divorce according to which country will offer them the best settlement. Sometimes divorcing abroad can be quicker and cheaper than going back home, legal experts say. But in many cases, going home where you understand the language and legal system is best.

It is important to research in advance under which jurisdiction the case will fall and which laws will apply. In some cases, international conventions may apply, such as in cross-border child custody disputes. Family law varies widely from country to country, and although there is talk of standardizing family law across the European Union, that still has not happened and is unlikely to happen soon, legal experts say. "Family law has a long tradition," said Brigitte Birnbaum, an attorney in Vienna who specializes in family law. "It is interwoven with culture and religion. It will be the last to change."

Family law in a European country can seem surprisingly anachronistic to North Americans. U.S. citizens who are familiar with the no-fault divorce laws in many states will be surprised to learn that, in a country such as Austria, the law demands that guilt be established before alimony is paid.

Also in Austria, alimony can be withdrawn or reduced if a person is found guilty of "immoral behavior," which includes inviting someone to live with them. Austrian women have lost alimony after the courts agreed that they had "defamed" their husbands by speaking against them in public.

Child support can also present challenges. Normally the spouse with the higher income is required to pay a percentage of that income per child. However, there is a limit - sometimes called the "playboy cap" - on the amount a person must pay if his or her income climbs above a certain level. If there is a second marriage and further children, the first family could see its benefits reduced.

On the other hand, in many European countries children are entitled to receive support payments far past the age of majority. In Austria, for example, a child is entitled to support until age 27.

But the most complex issues in overseas divorce spring from child custody. Being foreign complicates the situation in several ways, legal experts say, especially for expatriates who want to return home.

Sylvia (who asked that her real name not be used) found herself trapped early on by laws designed to prevent foreigners from fleeing the country with their children. On the day after she and her husband separated, she received a letter informing her that she had lost custody of her 3-year-old daughter. Her husband had invoked a law designed to prevent foreigners from taking their child abroad, although she claims she did not intend to do this. She was told she had two weeks to appeal.

After Jane Goldberg, an American living in Austria who also asked that her real name not be used, separated from her husband, she found herself embroiled in a custody battle for her young son that kept her from returning to the United States for five years. When her husband, a freelance musician, first left her without any means of support, she went to the U.S. Embassy in Vienna for help. "I wanted them to find me a job, and they said, 'Well, do you have any furniture you could sell?'" she said.

In the end, the embassy offered to loan her money to return to the United States, she said - an offer she was unable to accept without losing custody of her son. Despite being "desperate" to return home, she settled into her adopted country. By the time she was finally awarded custody of her son, five years later, she had chosen to remain.

"It is almost like being held prisoner," said Patience Gebauer, a counselor who works with expatriate families in crisis. "If the court gives you joint custody, you have to stay here."

Sylvia said she believed her foreign status worked against her in other, less direct ways. Ten years of marriage abroad had left her totally dependent on her husband, she said. When she filed for divorce, she found herself with no money to rent an apartment, pay legal fees, or support herself and her child. Her daughter, who was then 6, asked to live with her father, a well-to-do lawyer. The courts awarded him full custody.

Although other lawyers in town familiar with the case said that it was handled fairly, Sylvia said she suspected that her status as a foreigner played a role. "It wouldn't have been so easy to take her away from me if I hadn't been a foreigner," she said. "I am different, and different is scary." Birnbaum, who has represented foreign clients for 20 years, insisted that foreigners were not treated differently in Austria.

Expatriates and immigrants can take steps to protect themselves, lawyers and social workers say. The first is to research family law in your jurisdiction before you file for divorce or even before you state your intention to separate, Birnbaum said. It is wise to seek the advice of a good family lawyer before walking out the door. Most European cities have services where you can consult once with a lawyer for free. U.S. embassies often maintain a list of local English-speaking attorneys with expertise in family law.

If you want to take a child back to your home country, Birnbaum advised, you should get your spouse to agree to give you full custody. A written document is best. Children taken out of their home countries before custody has been established can be forcibly repatriated under international law.

Before walking out the door, be aware that in some countries you will be automatically deemed the guilty party for abandoning the home. In Austria, for example, you then forfeit your right to alimony.

Husbands or wives who have been physically or verbally abused should try to get documentation of the abuse before filing for divorce, lawyers said. Police and doctor reports are often needed to establish guilt.

Birnbaum recommended that women try ahead of time to document their husbands assets with copies of bank statements, stock certificates, tax returns and any other financial records they can find.

Pat Amundrud, chairwoman of the United Nations Women's Guild Family Status Committee, counsels the partners of United Nations workers. She said that women, especially, too often allowed themselves to become entirely dependent on their husband's money and benefits. They should make sure bank accounts and property leases are held jointly.

"You have to think, what happens if you get thrown out of the apartment?" she said. "Do you have money to get home? Is your visa dependent on him? What about health care and schooling for your kids?"

And, although the last thing anyone wants to do when getting married is envision a divorce, Birnbaum said foreigners should do just that, and negotiate a prenuptial agreement.

Providing wise and experienced legal counsel to international families for many years

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