Contested Divorce
Attorney specializing in family law & divorces, founder of the law firm IBESICH
Legal Notice/Disclaimer: The following information is intended for general guidance only and does not replace individual legal advice. For advice tailored to your specific situation, please consult a lawyer or another qualified legal professional.
In a contested divorce, the court decides on the divorce itself as well as key related issues — such as support, asset division, and custody or visitation rights.
This guide walks you step by step through the process, highlights common points of conflict, and explains which types of evidence are useful. You’ll find concrete examples and concise checklists to help you better understand what to expect next.
- What qualifies as a ground for divorce, and how can it be proven?
- How does the procedure work — from filing the claim to the final judgment?
- Which costs, deadlines, and risks should you be aware of?
- What does “contested” mean?
- No agreement between the spouses
- The court decides on the divorce and key consequences (maintenance, asset division, custody/visitation rights).
- Grounds for divorce
- Fault (e.g., adultery, violence, severe insults)
- Dissolution of the household (3/6 years)
- Special reasons (e.g., severe illness)
- Securing evidence
- Witnesses, documents, photos, and lawfully obtained chat/email records.
- Collect early and keep them organized
- Procedure at a glance
- Filing the lawsuit with the district court
- Hearing (attempt at reconciliation)
- Presentation of evidence
- Judgment
- Switch to an amicable divorce possible at any time.
- Duration:
- Usually 6–12 months; significantly longer if there are many disputes, expert opinions, or appeals.
Table of Context
What Is a Contested Divorce?
Definition and Legal Basis
A contested divorce refers to a divorce that is not mutually agreed upon but must be pursued through a lawsuit in court. This means that one spouse files a divorce petition against the other because there is no mutual consent to the divorce itself or its terms. Legally, it is a civil proceeding before the court. In Austria, there are three legally recognized grounds for a contested divorce: divorce based on fault, divorce due to the breakdown of the marital relationship, and special grounds for divorce (e.g., mental illness). These are explained in more detail below. Every contested divorce requires that the marriage be irretrievably broken down — meaning that a restoration of marital life can no longer be expected.
Difference from a Mutual Divorce
In contrast to a contested divorce, there is the mutual divorce. In a mutual divorce, both spouses jointly file a petition for divorce and agree on the consequences of the divorce (asset division, support, custody, etc.). Mutual divorces are usually faster, less expensive, and less stressful since no contentious court proceedings are required. Legally, one condition for a mutual divorce is that the marital relationship has been dissolved for at least six months and that both spouses acknowledge the irretrievable breakdown of the marriage. However, if the spouses cannot reach an agreement — either about the divorce itself or about essential consequences of the divorce — the only remaining option is a contested divorce.
When Is a Divorce Considered Contested?
A divorce is considered contested when no mutual agreement between the spouses is possible. This is the case, for example, when one spouse does not consent to the divorce or when the requirements for a mutual divorce (such as a complete divorce settlement agreement) are not met. Even if both want to divorce but are in conflict over key issues — such as support, asset division, or custody — the process will proceed as a contested divorce. In all these cases, one of the spouses must file the divorce petition, and the court will ultimately decide on the divorce and — unless handled in separate proceedings — on the disputed issues. Thus, a divorce is considered contested whenever no mutual agreement can be reached on the divorce or its consequences, making a judicial decision necessary.
Grounds for Divorce in a Contested Divorce
The most common reason for a contested divorce is the irretrievable breakdown of the marriage. Austrian law requires that the marriage be so deeply broken that the restoration of the marital relationship can no longer be expected. This breakdown can have various causes. In the case of a divorce based on fault, the breakdown is caused by a serious marital misconduct by one spouse:
Typical marital faults that are recognized as grounds for divorce include:
- Infidelity (adultery) – when one spouse breaches marital fidelity and engages in a relationship with a third person.
- Physical or psychological violence – such as physical abuse or serious psychological harm, including threats, humiliation, or ongoing emotional abuse.
- Neglect of duties – for example, failure to provide financial support to the family, lack of interest in family life, persistent refusal to provide care in case of illness, or leaving the marital home without agreement (malicious abandonment).
- Severe addiction issues – such as alcoholism or drug addiction, provided the affected person bears personal responsibility (e.g., by refusing therapy).
- Insulting or dishonorable behavior – constant insults, humiliation, or prolonged, unjustified silence (“emotional withdrawal”) may constitute serious marital misconduct.
If such serious misconduct occurs, the innocent spouse may file for divorce. It is important that the misconduct actually led to the breakdown of the marriage — meaning that the relationship is beyond repair. The spouse at fault generally cannot prevent the divorce from being granted.
Example: A husband has an affair and begins an extramarital relationship. When his wife learns of this marital misconduct, she feels deeply hurt and wishes to end the marriage. However, the husband refuses to agree to a mutual divorce because he fears the consequences (such as spousal support). In this case, the wife can file for divorce based on fault — a contested divorce on the grounds of adultery. She must present the ground of infidelity to the court and provide evidence, such as messages or photos proving the affair. If the husband continues to refuse, the court will assess the evidence and decide whether to grant the divorce on grounds of adultery.
In addition to fault-based grounds, there are also cases where a marriage can be dissolved without a specific “fault” by either spouse — namely, divorce due to the dissolution of the marital relationship. This ground applies when the spouses have been living apart for at least three years and the marriage is considered irretrievably broken:
This is referred to as a breakdown divorce, which usually becomes relevant when one spouse opposes the divorce. If one partner refuses to consent to the divorce and has committed no serious wrongdoing, the other may still seek divorce after three years of separation, provided that the marital relationship has indeed ended and reconciliation is no longer possible. In practice, this situation may arise when one spouse delays divorce for financial reasons or personal motives.
Example: Ms. B. and Mr. A. have lived apart for more than three years since Mr. A. moved out. Mr. A. now wants to get divorced, but Ms. B. refuses the divorce — she prefers to remain married, perhaps for emotional reasons or to retain pension benefits. Since no fault lies solely with Ms. B. and she does not consent to a mutual divorce, Mr. A. can file for divorce on the grounds of dissolution of the marital relationship. He must demonstrate to the court that the marital union has been ended for more than three years and that the marriage is definitively broken. The court will review whether the conditions are met. Unless exceptional hardship applies, the divorce will be granted even if Ms. B. continues to refuse. Under Austrian law, a spouse cannot permanently block a divorce if the marriage has in fact long ceased to exist.
Furthermore, the law also recognizes other special grounds for divorce in exceptional cases:
These include, in particular, severe mental illness or contagious/repulsive diseases of one spouse (§§ 50, 52 Marriage Act). In such cases, a contested divorce may also be granted if the illness has irretrievably destroyed the marriage and continuing the union would be unreasonable for the healthy spouse.
However, strict conditions apply, and a so-called hardship clause may also play a role: if the divorce would impose exceptional hardship on the ill spouse, the court may refuse it despite the existence of a legal ground. These special cases are rare in practice.
In summary, there are two main situations that lead to a contested divorce: either a serious wrongdoing has occurred (fault-based divorce) — leading to a dispute over blame in court — or there is no mutual willingness to divorce or agreement on the consequences (e.g., one spouse refuses the divorce or key issues remain unresolved). In both scenarios, a mutual solution is not possible, and the court must decide.
Procedure of a Contested Divorce in Austria
The process of a contested divorce follows clearly defined steps and is similar in structure to other civil court proceedings. The main stages are outlined below:
Filing the Divorce Petition at the District Court
The first step is the filing of the divorce petition at the competent district court. Jurisdiction usually lies with the district court in the area where the spouses last had their common habitual residence. The petition can be submitted in writing or orally recorded during specific court sessions (official days). The written petition must include the specific divorce claim (the request to dissolve the marriage) and the asserted grounds for divorce, along with the relevant evidence. All important documents should already be attached when filing — for example, the marriage certificate, proof of residence, birth certificates of children, and evidence of assets to be divided. The court then serves the divorce petition to the respondent spouse, who is given the opportunity to submit a written response. Afterward, the court schedules a date for the oral hearing.
Preparation of Evidence and Witnesses
Careful collection of evidence is crucial in contested divorces. Both parties — especially the plaintiff — must present proof to support their claims. Relevant evidence may include witness statements (e.g., from relatives or neighbors regarding incidents of conflict or violence), documents (letters, emails, photos), or digital evidence (chat logs, text messages, social media posts). It is essential that all evidence is obtained legally (illegal recordings or hacking private accounts are not permitted). It is advisable to collect documents and inform potential witnesses early on. The lawyer plays a key role here, helping to determine which evidence is admissible and persuasive in court. A common mistake is failing to provide sufficient proof for alleged misconduct, which can result in the dismissal of the case. Since it is often difficult for non-lawyers to judge what qualifies as adequate evidence, legal consultation is strongly recommended.
Court Proceedings and Oral Hearing
On the scheduled date, the oral hearing takes place at the district court. Both spouses usually must appear in person, along with their lawyers (if represented). The judge often begins the hearing by attempting to achieve reconciliation or at least an amicable settlement. The court may point out available counseling services and discuss whether a mutual divorce is still an option. This step is meant to give both parties a chance to resolve the matter without a full trial. If, during the proceedings, mutual agreement becomes possible, the spouses may switch to a mutual divorce at any time — the contested trial would then be halted.
If reconciliation efforts fail and the divorce remains contested, the process continues to the evidentiary stage. Both sides present their arguments. The plaintiff explains the reasons for seeking divorce and presents the evidence for the grounds. The respondent then has the opportunity to defend themselves — for example, by denying the alleged misconduct or claiming contributory fault by the plaintiff. Witnesses may be examined and, in complex cases, experts may be appointed. The trial can extend over several hearings, especially if extensive evidence must be reviewed.
Divorce Judgment and Finalization
At the end of the proceedings, the court issues a divorce judgment. This decision determines whether the marriage is dissolved or the claim is dismissed. If the divorce is granted, the judgment may include a statement of fault — specifying which spouse bears the blame (in whole or in part) for the breakdown. The written judgment is served to both parties. From the date of service, a four-week period begins during which the losing party may file an appeal. If no appeal is filed, the judgment becomes final and binding after the four-week period, and the marriage is officially dissolved. A finalized divorce judgment can be certified with a legal validity stamp, which may be required for remarriage. If an appeal is filed, the case is referred to the higher court (regional court), delaying finalization.
It is important to note that a contested divorce primarily decides on the existence of the divorce itself. Many consequences of divorce (such as support, asset division, or custody) are often not decided within the same case — at least not if they remain disputed between the parties. These matters must either be resolved in separate proceedings (e.g., asset division lawsuit, custody proceedings) or settled out of court beforehand. This means that while the divorce itself can be granted, specific follow-up issues may remain open and need to be litigated separately. For example, an application for division of marital property and savings must be filed within one year after the divorce becomes final, otherwise the entitlement expires.
Burden of Proof and Evidence
In contested divorce proceedings, the spouse seeking the divorce generally bears the burden of proof for the grounds of divorce. This means that if one spouse makes a specific allegation (e.g., infidelity or violence), they must be able to prove it in court. Otherwise, there is a risk that the claim will be dismissed. The type of evidence required depends on the specific grounds asserted:
- In a fault-based divorce (e.g., marital misconduct such as infidelity, abuse, etc.), the plaintiff must prove that the other spouse committed serious marital misconduct and that this behavior directly caused the irretrievable breakdown of the marriage. Relevant evidence includes witness statements, photos, message logs, or documents that demonstrate the wrongful conduct. Indirect evidence (such as hotel receipts in cases of adultery) can also be used.
- In a divorce due to dissolution of the marital relationship (prolonged separation), the burden of proof lies in demonstrating that the spouses have lived separately for at least three years. This can be shown through residence certificates, separate rental agreements, or witness statements from third parties confirming the separation. It must also be shown that the marriage is irretrievably broken and reconciliation is no longer expected.
- In divorces for other reasons (e.g., mental illness under § 50 Marriage Act), no fault is required, but the illness and its impact on the marriage must be proven. Medical certificates or expert reports are often used as evidence. At the same time, it must be demonstrated that the divorce request is not morally unjustified — in other words, that granting the divorce would not impose unreasonable hardship on the ill spouse.
In general, all claims that are essential to the grounds for divorce must be substantiated. Courts carefully examine whether the legal requirements are met. If the evidence fails, the claim will be dismissed — meaning the marriage remains intact. Therefore, it is important to secure all available proof early on (e.g., save written communication, keep photos, ask witnesses for support). It can be helpful to keep a divorce diary noting important incidents (date, what happened, witnesses).
The support of a lawyer is particularly valuable when gathering evidence. An experienced divorce lawyer knows which types of evidence are persuasive and admissible in court and can help organize them systematically. A lawyer will also caution against using illegal methods (e.g., secretly recording conversations in private spaces), which may even be punishable by law. In summary: the stronger the evidence, the higher the chances of success. Conversely, many divorce cases fail simply because allegations are made without sufficient proof — in such cases, the court dismisses the claim, and the marriage remains legally valid.
Consequences of a Contested Divorce
When a marriage is dissolved by court judgment, numerous follow-up issues arise. Ideally, these are resolved during the divorce proceedings through settlements or out-of-court agreements. If not, they must be clarified in separate proceedings. The main consequences of divorce are:
Division of Assets
After a divorce, both spouses’ property rights must be settled. In Austria, the system of separation of property applies during marriage, but after divorce, the marital assets and marital savings (in simple terms: all assets acquired or saved jointly during the marriage) must be divided. In a mutual divorce, the division of assets is set out in the divorce settlement agreement in advance. In a contested case, however, it must be decided by the court. A petition for division can be filed within one year after the divorce becomes final. The court then determines which spouse receives which property or liabilities.
In principle, a fair division is sought, often (though not necessarily) resulting in an approximately 50:50 split. However, certain assets are excluded: property owned by one spouse before marriage and gifts or inheritances from third parties generally remain with that spouse. Personal items (such as clothing) or work tools (e.g., professional equipment) are also excluded. Everything else — especially the marital home, cars, savings, and household items — is subject to division if it was acquired or saved during the marriage.
When the division is decided by the court, it considers the specific circumstances: Who contributed how much to the acquisition of assets? Are there debts that one spouse paid alone? Who has the greater need for certain items (e.g., the marital home — often awarded to the parent with whom the children live)? Such factors can lead to deviations from an even split. A frequent point of contention is the marital home: if it is part of the jointly acquired property, the court may grant ownership or occupancy to one spouse — for example, if the other has better housing options. For rented apartments, the court can determine which spouse continues the lease. All of this is handled in the division proceedings. It is advisable to have legal representation, as asset division can be complex.
Spousal Support and Child Maintenance
Spousal support: The question of post-divorce support depends mainly on fault. In a contested divorce with a declaration of fault, the judgment specifies which spouse is primarily or solely responsible for the breakdown of the marriage. That spouse must then generally pay spousal support to the other if the recipient cannot support themselves. For example, if the wife has no income and the husband is found solely at fault, he must pay her reasonable monthly support. The amount depends on the marital standard of living (in practice, around one-third of the payer’s net income is often used as a guideline if the recipient has no income).
If both spouses share equal fault, neither is generally entitled to support. Only in special hardship cases may a small amount of support be granted if one spouse cannot support themselves and it would be equitable to do so. In divorces without a declaration of fault (e.g., after long separation under § 55 Marriage Act), there is generally no full entitlement to support; at most, the non-filing spouse may receive limited support based on fairness.
Note: Support can also be agreed upon or mutually waived in a divorce settlement. However, a complete waiver must not be deemed unconscionable. In any case, it is important to consider long-term financial consequences — a premature waiver can lead to serious disadvantages.
Child maintenance (alimony): Regardless of parental fault, minor children are always entitled to support. Thus, when children are involved, it must be determined who pays the alimony. Typically, the parent with whom the child does not primarily reside pays monthly support based on a percentage of their income. These amounts are either specified in an agreement or determined by the family court.
Because a mutual divorce requires a mandatory agreement on child support, disputes about maintenance for children usually arise only when parents also disagree about custody or visitation. In such cases, the court determines child support within the custody proceedings. Otherwise, the type of divorce does not affect the obligation to pay — both parents remain responsible for the child’s well-being (one through care, the other through financial support).
Custody and Visitation Rights for Children
When spouses have children, custody and visitation rights are crucial issues. In a mutual divorce, parents must agree on how custody will be exercised (joint or sole custody) and how visitation will be arranged for the non-residential parent. In a contested case, disagreements are common. In Austria, children’s matters are handled separately by the family court (district court in non-contentious proceedings). This means that if the parents cannot agree, the court decides in a separate child welfare proceeding on custody and visitation rights.
The divorce itself can be finalized even if custody issues remain unresolved. However, courts often try to encourage agreement in the best interests of the child. In highly contentious cases that are especially stressful for the children, the court may appoint a child advocate — a neutral person (usually with legal and psychosocial training) who represents the child’s interests and supports them throughout the process. The parents must cover the costs, although legal aid may be available.
In general, custody disputes are decided based on the best interests of the child. This can mean that joint custody is maintained despite conflict or that primary custody is granted to one parent if it better serves the child. Visitation rights are always regulated so the child can maintain contact with both parents. Unresolved custody disputes greatly prolong and complicate the divorce process. It is therefore in everyone’s — especially the children’s — interest to reach an amicable agreement with professional help.
Right of Residence and Property Issues
A practical question in divorces is often: Who gets to stay in the marital home? This issue also falls under asset division, provided the home is jointly owned or rented. If the marital home is a rented apartment, the tenancy law allows the court to transfer the lease to one spouse under certain conditions.
The main factors are who needs the home more urgently (e.g., if children are to remain there). If it is a jointly owned house or condominium, the court can grant ownership to one spouse and order compensation to the other. Sometimes, one ex-spouse must grant temporary residence to the other until alternative housing is arranged.
Important to know: Until the divorce becomes final, there is generally a duty of cohabitation (§ 90 Austrian Civil Code), as long as it is reasonable. In practice, however, many couples already live separately during the proceedings — even within the same residence. In cases of severe conflict, one spouse may seek a temporary court order granting exclusive occupancy (e.g., after incidents of violence). After the divorce, any legal right to occupy a home owned by the other spouse ends unless otherwise agreed. In any case, housing arrangements should be included in the overall divorce settlement or clarified during the division proceedings.
Costs of a Contested Divorce
A contested divorce is generally significantly more expensive than an uncontested one. Court and attorney fees increase with the duration and complexity of the proceedings. When filing the divorce petition, a court fee of 384 € is currently charged. If a settlement (an agreement recorded in a court protocol) is reached during the process, an additional fee is due. If the settlement also involves the transfer of real estate, the costs increase further. These amounts are set by law (Court Fees Act) and must be paid by the parties.
Attorney fees: Although there is no absolute requirement for legal representation in the first instance (district court) of divorce proceedings in Austria, most people still engage a lawyer — especially in contested cases. Each party initially pays their own lawyer. Fees are based either on the Attorney Tariff Act (which depends on the value in dispute) or on individual agreements (often hourly rates). A contested divorce can therefore easily cost several thousand euros per party in legal fees. If significant assets are at stake or multiple hearings are required, total costs can reach the five-figure range. In simpler cases with only one hearing and limited dispute value, attorney fees may remain in the lower four-figure range. The range is wide, but the general rule is: the longer and more intense the conflict, the more expensive it becomes.
Cost allocation: Who pays in the end? In principle, each spouse must initially bear their own legal and attorney costs. However, the Code of Civil Procedure provides for a cost ruling: the party that loses the case (i.e., whose claim is dismissed) must reimburse the prevailing party’s costs. For example, if the husband files for divorce but his claim is completely rejected (because he cannot prove the grounds), he must pay not only his own costs but also his wife’s attorney fees. If one party is only partially successful (e.g., divorce granted but no exclusive fault assigned), costs are divided proportionally. In practice, this means that even after spending significant sums, one might still have to cover part of the opponent’s costs — increasing the financial burden further.
Cost savings through settlement: Any settlement reached between the parties can significantly reduce the overall costs. A court settlement ends the proceedings and avoids additional hearings, thereby lowering attorney fees. The additional court fee for the settlement is typically lower than the costs of a prolonged trial. Moreover, an amicable resolution can prevent one party from having to pay thousands of euros in cost reimbursement to the other. Ideally, the spouses reach a timely agreement and conclude a settlement — saving both stress and money.
Legal aid: Individuals with low income and limited assets can apply for legal aid. If granted, court fees may be deferred or waived, and a lawyer may be appointed free of charge. However, the court carefully reviews the applicant’s financial situation and may grant only partial aid. Important: legal aid does not protect against potential reimbursement claims for the opponent’s costs if one loses the case. Additionally, recipients may be required to repay the aid if their financial situation improves within three years after the case concludes. Nevertheless, legal aid is an important measure to ensure that individuals with limited means can still pursue their rights in divorce proceedings.
Duration of Proceedings
The length of a contested divorce cannot be predicted precisely — however, it is usually much longer than an uncontested one. In Austria, a simple divorce case (without additional disputes) can be completed within a few months if only one hearing is required and no appeal is filed. Realistically, however, most cases take around 6 months or more. In the past, the average duration of contested divorce proceedings at district courts was around 9–10 months, with a rising trend for complex cases.
Several factors can significantly prolong the process. First, the number of disputed issues: if the case concerns only the divorce itself (e.g., based on fault), it may proceed more quickly than if there are additional disputes about support, property, and children. The latter often leads to multiple parallel or consecutive proceedings, increasing the total duration. Second, extensive evidence gathering (many witnesses, expert opinions) can slow the process considerably. Appeals (challenging the judgment) also extend the duration — an appeal before the regional court can add several months to more than a year. In extreme cases, especially if the matter goes to the Supreme Court, a divorce case can take several years to conclude.
Speeding up the process is possible when both parties cooperate constructively. For instance, they can agree on certain issues so that fewer points remain in dispute. Full or partial settlements before or during the trial can also significantly shorten the proceedings. For example, if the division of assets is resolved out of court, the court no longer needs to decide on that matter. Avoiding unnecessary delay tactics — such as intentionally postponing hearings — also helps, as courts can take measures against such behavior. Those seeking a quick resolution should refrain from appealing every decision purely out of principle if the outcome already seems fair. Overall, the fewer the issues in dispute and the more cooperative the parties, the faster the divorce can be finalized.
The Role of the Lawyer in a Contested Divorce
Obligation to Have Legal Representation
In Austrian district courts, there is no absolute requirement for legal representation in divorce proceedings. In theory, parties could represent themselves. In practice, however, a contested divorce without a lawyer is strongly discouraged. Divorce law is complex (involving many provisions of the Marriage Act, the Code of Civil Procedure, and the Civil Code), and the stakes are high — financial security, child custody, and long-term maintenance claims. Without legal representation, laypersons risk making formal mistakes or failing to assert important rights. At the latest, during an appeal before the regional court, legal representation is mandatory anyway.
It is therefore highly advisable to be represented by an experienced divorce lawyer in contested proceedings. If the other party already has a lawyer, appearing alone would put you at a clear disadvantage. A good lawyer not only knows the law but also understands how courts operate and can realistically assess the chances of success. They will first attempt to achieve their client’s goals out of court — often, lawyers can negotiate solutions with one another that the parties themselves would not have been able to reach.
Strategic Preparation and Case Management
Even before filing the claim, a lawyer advises on the strategic approach. They assess whether sufficient evidence exists, which ground for divorce is most promising, and whether an alternative route (such as a mutual divorce with more favorable terms) might be better. During the proceedings, the lawyer handles formal filings, drafts all written submissions, and represents the client in hearings. Particularly during witness cross-examinations or party questioning, legal experience is invaluable — it is about revealing inconsistencies or reinforcing credibility.
Another key aspect is emotional relief. The lawyer acts as a buffer in communication: instead of the spouses confronting each other directly, most interactions are conducted through their legal representatives. This helps prevent escalation. The lawyer also ensures that their client does not act impulsively or say something damaging in anger during court proceedings. They promote objectivity and keep the argumentation focused. In short: the lawyer is both a legal expert and a strategic ally, ensuring the best possible outcome for their client.
Support During Settlement Negotiations
Divorce lawyers are not interested in prolonging conflict unnecessarily. On the contrary, a good lawyer will always explore whether a settlement is possible. A fair out-of-court agreement is often more advantageous for the client than a lengthy trial. The lawyer assists in negotiating such settlements — whether directly with the opposing counsel or in the presence of the judge during a court hearing. They are familiar with common compromise arrangements (for example, a 55:45 asset division instead of 50:50 in certain cases) and can craft creative, balanced solutions. At the same time, they protect their client’s interests and ensure that no hasty or unfavorable agreement is accepted.
Common Mistakes in Contested Divorces
- Insufficient evidence collection: As mentioned earlier, many divorce claims fail due to a lack of evidence. A common mistake is making accusations (e.g., infidelity) without being able to provide documented proof. It is essential to gather evidence early and avoid destroying anything that could later be useful. Neglecting this weakens one’s position significantly.
- Emotional decision-making during the process: Divorce is emotionally challenging, but making important decisions out of anger or revenge often backfires. For example, stubbornly refusing a fair settlement can result in a worse judgment. Or, impulsive statements made in anger can be viewed negatively by the court. Keeping a cool head and seeking professional advice are crucial for making rational choices.
- Lack of legal counsel: Entering a contested divorce proceeding without a lawyer is risky. Laypersons are usually unfamiliar with their full rights (e.g., regarding maintenance or pension division) and procedural rules. Those who try to save money by avoiding legal representation may end up paying more — for instance, by signing an unfavorable settlement or missing deadlines. Early legal consultation can prevent many mistakes and help set the right course.
- Ignoring long-term consequences: A major error is focusing only on the present stress of divorce while overlooking the future. For example, divorce affects inheritance rights — ex-spouses are no longer entitled to inherit from one another. Pension rights (such as survivor’s or adjustment benefits) also cease after divorce. Financial planning after the divorce must be considered: what will your standard of living look like when support payments end or begin? Decisions made during the process — such as asset division or waiving support — can have consequences lasting decades. Ignoring these long-term effects would be careless.
Tips for Preparing for a Contested Divorce
- Gather documents and evidence: Before the first meeting with a lawyer or the drafting of a divorce petition, you should collect all important documents. These include the marriage certificate, proof of residence, income statements from both parties, bank statements, proof of ownership (land register extract, vehicle registration), and any prior agreements (such as a prenuptial agreement). Evidence of possible marital misconduct (e.g., photos, messages, diary notes) should also be secured. The more complete the documentation, the better your lawyer can assess the situation and the faster the petition can be prepared.
- Clarify your financial situation: Get a clear picture of your own finances and those of your spouse. What joint debts and assets exist? What are the respective incomes and fixed expenses? It is advisable to create a budget to understand what you need to live on after separation and where you will stand financially. If possible, open your own bank account and, as far as legally permissible, separate your finances early. This helps prevent unpleasant surprises, such as your spouse emptying accounts or taking on loans. If there is real estate, keep documents on its value and encumbrances at hand. This financial overview also helps your lawyer assess support claims or determine a fair division of assets.
- Seek legal advice early: Many mistakes can be avoided by consulting a lawyer early on. Even before discussing divorce with your spouse or taking formal steps, an initial consultation can be useful — it helps you understand your rights and options. The lawyer can explain which strategy is most promising and warn against rash actions. Even if you still hope to avoid divorce, being informed will not hurt. At the latest, if a divorce proceeding seems likely (for example, if your spouse announces one), you should have legal representation. Your lawyer can also communicate with the opposing party’s lawyer and possibly negotiate an amicable solution before positions harden.
FAQ – Frequently Asked Questions About Contested Divorce
How long does a contested divorce take in Austria?
It depends on the individual case. You should plan for at least half a year, often longer. A simple case without additional disputes can be completed within 6–12 months. Complicated cases with multiple points of conflict or appeals can take several years. Factors such as the number of hearings, required expert reports, and appeals can significantly extend the process. For comparison: An amicable divorce is often completed within 2–4 months, while a contested divorce usually takes at least 9–12 months or longer.
How can a contested divorce be avoided?
The best way is to reach an agreement with your spouse before the situation escalates. This means communicating openly, being willing to compromise, and discussing separation arrangements early. An amicable divorce is possible if both parties are prepared to negotiate fairly on issues such as maintenance, assets, and children.
The key is to prevent entrenched conflict from developing in the first place — sometimes it’s wiser to give in a little to avoid a major court battle. Ultimately, a contested divorce can only be avoided if both spouses seek a solution as equals. If this is not possible, the case becomes contested. In some situations (e.g., domestic violence), an amicable solution may simply be impossible or unreasonable.
What does a contested divorce cost on average?
There is no fixed amount since costs depend heavily on the value of the dispute and the complexity of the case. Court fees and attorney’s fees apply. If little property is involved and only brief hearings are required, total costs per party might amount to a few thousand euros. For complex disputes (e.g., high-value assets, multiple hearings), costs can reach into the five-figure range. Keep in mind: every hour of legal work and each court session costs money. The losing party may also have to pay the other side’s legal fees. Therefore, it often makes financial sense to settle as much as possible out of court (reach a settlement) to keep costs down.
Do I absolutely need a lawyer?
Strictly speaking, a lawyer is not legally required in the first instance. However, the clear recommendation is: Yes, hire a lawyer for a contested divorce. The subject matter is complex and involves important rights (maintenance, assets, pensions, contact with children). Without a lawyer, there is a high risk of making mistakes that you may regret later. A lawyer knows the applicable laws and defends your interests. If the opposing party has a lawyer and you do not, there is a serious imbalance. In addition, having legal representation usually provides greater confidence and understanding of your position. Remember: the one-time cost of legal advice is far less than the potential long-term damage caused by a poorly handled divorce. For those with limited means, legal aid is available so that no one must forgo representation for financial reasons.
What happens if there is no agreement about the children?
If the parents cannot agree on custody or visitation, the court decides in a separate guardianship proceeding based on the best interests of the child. The divorce court itself only grants the divorce; child-related matters are handled in a separate procedure, even during the ongoing divorce. The youth welfare office is usually consulted, and from around the age of 10, children are also heard. In extreme cases, the custody process can take a long time, especially if expert opinions are needed or the conflict is deeply entrenched. A child advocate may be appointed to support the children. Ultimately, the court determines who receives primary custody or whether joint custody continues, and how the non-custodial parent’s visitation rights are arranged. Lack of agreement regarding the children greatly prolongs and complicates the entire divorce process. It is therefore in everyone’s best interest — especially the children’s — to reach an amicable resolution with professional help if possible.
Is infidelity a ground for divorce?
Yes. In Austria, infidelity is considered a serious breach of marital fidelity and can justify a fault-based divorce. The key factor is whether the infidelity led to the irreparable breakdown of the marriage. Adultery alone does not automatically suffice — the court assesses whether the marriage has been so damaged that reconciliation is no longer expected.
Important: Anyone claiming infidelity must prove it (e.g., through witnesses, WhatsApp or text messages, photos, or a confession).
If the affair was forgiven or tolerated over time, it may no longer be considered a valid ground for divorce. If both partners share some degree of fault, the court may rule shared or predominant fault.
The claim based on marital misconduct must usually be filed within six months of learning about the infidelity. Several years after the incident, it can no longer be used as grounds. However, if the affair continues or the couple is already living apart, the six-month period is suspended.
Sources
- Austrian Federal Portal oesterreich.gv.at
- General information on contested divorce – Federal Ministry of Justice (as of 01.01.2024)
- Contested divorce due to fault – Legal basis: § 49 Marriage Act (serious marital misconduct as a ground for divorce)
- Divorce due to dissolution of the household – Legal basis: § 55 Marriage Act (divorce after three years of separation)
- Contested divorce for other reasons – Legal bases: §§ 50–54 Marriage Act (divorce due to mental illness, contagious disease, etc.)
- Maintenance claims after divorce, Federal Ministry of Justice, as of 01.01.2024 (rules on spousal maintenance depending on fault)
- Legal Information System (RIS) of the Republic of Austria
- Marriage Act (EheG), §§ 49–55, 60 ff. – Statutory grounds and legal consequences of divorce in Austria (fault-based divorce, breakdown divorce, hardship clauses).
- Marriage Act (EheG), §§ 49–55, 60 ff. – Statutory grounds and legal consequences of divorce in Austria (fault-based divorce, breakdown divorce, hardship clauses).
- jusline.at
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