One misconception that persists in family law is that women always receive alimony after divorce. This is incorrect. People often do not differentiate between child maintenance and (post-marital) maintenance for the ex-partner. In a nutshell: Child maintenance is not the same as spousal maintenance. The requirements and the amount could not be more different. Child maintenance will have to be paid, there is little to shake about. Post-marital maintenance for the ex is much more complex.
Divorce by mutual consent and post-marital maintenance?
In a divorce by mutual consent, you not only have to agree on the fact that you are getting divorced, but also on the main consequences of the divorce. How should the marital property be divided and what about post-marital maintenance for the spouses. In the case of joint minor children, custody, contact rights and child maintenance must also be clarified. If you want to divorce by mutual agreement, you must therefore agree whether the ex-partner should receive monthly maintenance, if so, how much and for how long. Among other things, this will depend on how the family life has been organized so far. It may be relevant whether one person was at home for years (with the children together), how long the marriage lasted and whether one party had massive marital misconduct, such as infidelity. Even if it is generally possible to reach an agreement freely in the course of a divorce by mutual consent, in light of the principle of fault that applies in Austria, one’s own chances in possible divorce proceedings are usually “priced in” to the negotiations. This means that the wife, who has been a housewife since the beginning of the marriage and has caught her well-earning husband in bed with her best friend, will probably not want to waive post-marital maintenance even in the event of an amicable divorce.
Who is legally “entitled” to maintenance and how much is it?
Maintenance during the marriage
If no agreement is reached, the legal framework must be used. A distinction must be made between maintenance during a marriage and maintenance after a divorce. During a marriage, each person should contribute to the joint life to the best of their ability, with housekeeping also being regarded as a full contribution. You could also say that in a marriage, “money is no object”. If one person runs the household and is therefore not gainfully employed, or if one person takes more care of the joint children and therefore only works a little outside the home, this person has a maintenance claim against the other, higher-earning spouse during the marriage. This is good to know because sometimes the time of separation and the time of divorce can be years apart. For example, if the person who is mainly employed simply moves out and to a new partner while the marriage is still valid, this does not simply release them from their maintenance obligations. Unless the person entitled to maintenance has committed serious marital misconduct themselves, maintenance will often be due during an ongoing marriage, especially after physical separation.
Maintenance after marriage and the fault principle in Austria
For post-marital maintenance, it is still relevant who is “at fault” for the divorce. In Austria, you are primarily entitled to “reasonable” post-marital maintenance if you “win” a divorce case in court. In contested divorce proceedings in court, the question is what happened and who is responsible for the end of the marriage. If the person at fault is also the one who earns significantly more, he or she will generally be liable to pay maintenance to the ex-partner. If a court finds that one of the spouses is predominantly at fault, maintenance may have to be paid to the other person even after the divorce. If the person entitled to maintenance has no income of their own, the person paying maintenance may have to pay 33% of their monthly net income. If both are gainfully employed, 40% of the total income of both, less the maintenance recipient’s own income, is used for the calculation. Unlike child maintenance, there is no “luxury limit” for post-marital maintenance for the ex-spouse. Ergo: If you earn a lot, you also pay a lot.
Alimony even if both are at fault?
As a rule, you are only entitled to the above-mentioned reasonable post-marital maintenance if the other person is to blame for the end of the marriage. If a court decides that both spouses are at fault, the needy, income-less spouse can be awarded so-called equitable maintenance. However, this equitable maintenance is small in amount and only intended for a limited period of time.
In certain cases, however, the law also provides for post-marital maintenance in other cases, even without fault. This maintenance is not as advantageous as fault-based maintenance because it is lower in amount and usually limited in time. Specifically, no-fault post-divorce maintenance can be provided, for example, in the “child-rearing case” or also in the “sacrifice case”. In the case of child maintenance, a person cannot reasonably be expected to support themselves after the divorce due to the care and upbringing of a joint child. This unreasonableness of self-support 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 idea is that a person has run the household during the marriage or cared for joint children or relatives and is therefore not (or no longer) able to support themselves. However, it should be noted that even in the cases mentioned here, particularly serious marital misconduct or self-inflicted neediness can prevent a claim for maintenance.
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