Why does my husband avoid engagement
When couples split up
The 20 most common mistakes and how to avoid them.
Photo: AndreyPopov - Thinkstock.com
"Often people suffer from very unpleasant characteristics of their partner for years - there are contentious people, pathologically jealous people, those who constantly put their partner down or who cheat. And at some point they'll have enough. But instead of filing for divorce, they cheat themselves. And only then do they think of divorce, "says lawyer Karin Wessely, explaining how not to do it.
Because: Then marriage misconduct stands against marriage misconduct, and the ex-partner can hope for significantly higher maintenance claims than if one had already filed for divorce before.
“First the question arises: Are you the active one who wants to split up? Or are you the passive one who is separated? - Depending on the situation, an opposing tactic is of course advisable, ”says attorney Alexander Scheer. The second distinction is that between married and unmarried, because this often has different legal consequences. The third: "Do you have children whose mental well-being you should pay attention to first, or you can occupy yourself to your heart's content with individual CDs or your favorite coffee cup," says Scheer. - Which we can get started with right away.
Mistake 1: Cheating - and with traces too
Unfortunately a classic: a spouse cheats. Regardless of whether he wants to get a divorce or not, he is tactically advised: “Deny, deny and of course don't get caught,” Scheer can only advise. Because in this country the principle of fault applies: Anyone who has wholly or predominantly contributed to the breakdown of the marriage usually threatens to have to pay increased maintenance (unless the partner earns better himself).
From the point of view of the cheated, it is of course exactly the opposite: "The goal is to document as well as possible," says Scheer. The important thing is: "An oral confession is not enough, you need evidence." Because such a confession at a weak moment could quickly be disputed in court.
Written evidence - see email, SMS, facebook, whatsApp and Co. are always good. “It is not uncommon for the man in his late forties to pose tightly embraced with his new flame, who is 20 years younger than him, on Facebook. You can't get rid of something like that, ”says Scheer. “If it's anywhere on the net - word will certainly get around,” he can only warn.
In the case of more discreet adulterers who deny everything, hiring a detective is recommended for the other side. And this is more often engaged in practice than the layman would believe - and is very often successful, also thanks to one or the other technical possibility. "If he finds what he is looking for, reimbursement of costs can be claimed not only in the course of the divorce from the cheating spouse, but also from the adulterous third party with a three-year limitation period," explains Scheer. Only if the latter can show that he did not know anything about a marriage of his playmate or he was convinced that the marriage was already separated, the latter can be spared the claim. - A little sweet revenge is also possible against him legally.
By the way: the so-called “marriage interferer” and the adulterous spouse are jointly and severally liable for these costs, “if one of them is prosecuted, he can get half of the costs back from the other”, explains lawyer Clemens Gärner, partner at Gärner-Perl lawyers.
Mistake 2: undressing head over heels
“Never move out,” warns Scheer. Or if, "only if you have previously obtained the other person's written confirmation that they agree." It doesn't have to be a piece of paper, but can also be saved by SMS or email.
Otherwise you commit a misconduct that can cost you dearly in the course of the divorce.
Anyone who has children they care about should also consider: “It is an absolute 'don’t move out without children. So you give up most of the childcare on your own initiative, ”warns Scheer.
Of course - by “moving out” one only understands that someone leaves the marital home with a bag and baggage. A short-term overnight stay in a hotel or with your best friend - for example after an evening argument - is, on the other hand, "included". It should just be clear that you do not want to change the center of your life right away, at most it is advisable to withdraw as soon as the waves have smoothed out a bit.
Incidentally, the same applies to the opposite side: "Simply replacing the lock is not allowed," explains Scheer. This is also a serious misconduct in marriage and also a violation of property under civil law.
Mistake 3: Not knowing what the spouse deserves
“Especially with women, I find it surprisingly often that they don't know how much their husband earns,” explains lawyer Susanna Perl-Böck, partner at Gärner-Perl Rechtsanwälte. As long as there is always enough money to live on, many apparently never ask. That is bad: Not only the amount of maintenance that can be claimed during the separation phase, but also possibly after the divorce, remains unclear.
“But if you don't even begin to know how much the other person earns, it may be that he saves significant amounts each month, which would have to be divided up as marital savings. But if nobody knows which assets are deposited where, the apportionment process will be difficult, ”explains Scheer. "Sharp" instruments, such as those available to the tax authorities and the criminal courts with the account register, are not available here. What remains is the precaution: “In times of time, ask what your partner earns,” advises Perl-Böck - ideally before you even start talking about a divorce.
By the way: “There is an obligation in marriage to clarify one's income and financial situation. Anyone who refuses is committing a misconduct, ”said Gärner. Usually in a marriage it is not a big problem to find out in advance which deposits, savings etc. exist.
Mistake 4: Spouse knows every password
Be it flirting with your new girlfriend or just exchanging emails with the newly hired divorce lawyer. Nowadays, those who know the passwords of their partners' smartphones, e-mail accounts and social media appearances have a knowledge advantage. “Maybe we shouldn't say it like that. But it is not uncommon for a woman to ask her husband to set up the cloud on her cell phone and a while later the house blessing goes wrong. If he then enters your correspondence with the password he knows and learns something incriminating there, that is not reprehensible. That has already been judged, ”warns Gärner.
It would be different if you crack codes or open closed letters from your ex in order to get hold of information that is actually none of your business. This would be a violation of the confidentiality of correspondence or privacy and, as such, would again be misconduct. Tip: If you have something to hide, you shouldn't leave your cell phone unprotected and change your passwords at time.
Mistake 5: Pay first, pay out in marriage
Suppose the dream condo costs 500,000 euros. You can raise 200,000 euros from your own savings plus grandma’s inheritance, and take out a loan for the rest. They get married soon afterwards, and the remaining 300,000 euros are paid off during the marriage.
Attention: “If more than 50 percent are paid off in an upright marriage, this is considered to be the predominant added value in the marriage and is subject to the apportionment procedure on an equitable basis. “After fairness” means, of course, that certain services of the spouses are offset as usual - financial, but also non-material cooperation, for example in bringing up children, in the household, etc. Often the division is 50:50 in the end.
In the case of the apartment, “the market value is applied, including any increase in value. The 200,000 euros brought in must be deducted from this, ”explains Perl-Böck. If one assumes a current market value of 600,000 euros (thanks to the increase in value) at the time of the asset allocation, it can happen that the other spouse is awarded 200,000 euros (600,000 minus the brought in 200,000 = 400,000 x 50%).
According to Perl-Böck, it would be legally better to have paid off the loan before the marriage. Or stipulate in advance by marriage contract that the apartment, for which only one pays, should remain with him.
Mistake 6: No marriage contract with married people
This leads to a common mistake - the lack of a marriage contract. Fortunately, the law regulates a great deal of the division of assets in the event of a marriage failure. (In contrast to life companions, where there are no special rules for things purchased together).
However, there can be reasons to regulate something specifically. Example: He moves into her house that she inherited from her parents. They get married, he invests a lot of money and time in renovating their house. A divorce ensues - what follows is a long argument about what's his due.
It can be even more dramatic for married people if one of the partners has a company. “You have to know that company assets are not divided. Not even when marital savings have continuously flowed into the company, ”warns Scheer. In this case, a financial compensation should be arranged in advance for the benefit of the non-entrepreneur. “Not necessarily in the classic marriage contract, but possibly as a social contract. For example, provided that the spouse becomes a silent partner in the spouse's company, ”says Scheer.
Another very important area of application for marriage contracts: If the spouses are citizens of other nations or are Austrians, but it is foreseeable that they will also live abroad. “In the marriage contract, you can choose which court and which law should be applicable,” advises Scheer. Otherwise, that can be controversial, and the legal norms of the various states, for example with regard to asset allocation, are extremely different - even within the EU.
Reading tip: A good overview is provided by www.coupleseurope.eu.
Mistake 7: Donation to the wrong person
The in-laws are so happy with the daughter's new splendid husband that they give him one of their properties as a present. Two years later, it turns out that the son-in-law leads a double life and yet wasn't such a great catch. The divorce goes through - what happens to the gifted property?
"If the parents had given their daughter to their daughter and the daughter to her husband, the return of the gift could be demanded in the event of a division of fault, because the contractual basis was no longer applicable," explains Perl-Böck. Unfortunately, the in-laws gave here directly - a serious mistake.
If at the time they had stipulated in writing together with the donation in the donation contract - preferably with the help of their lawyer or notary - that the donation was made “depending on the reason for the dissolution of the marriage”, with more specific details, this would also have been a good solution.
So all they can hope for is that a revocation of the donation due to gross ingratitude will go through, which - after all, he was not unfaithful to his in-laws - will rarely be crowned with success.
Mistake 8: A divorce settlement is always good
"The guiding principle should by no means be 'just divorced quickly," warns Perl. In itself, such a comparison can also be drawn up by both still-spouses themselves and legal advice is not mandatory before the divorce - you can do without it. "In practice it is like this: If the judge notices that one of the two has no idea what he has signed, he usually already instructs him to seek advice and only then to come back," explains Perl-Böck. But that is not a really dense safety net against being cheated.
It is therefore important: everyone should find out more in advance from a lawyer or at least on the day of the court, and not immediately sign what the future ex-husband presents to him. It can happen too quickly that one waives lifelong maintenance, parts of the joint assets - perhaps not known in detail - and much more. All of this can hardly be corrected afterwards.
In the case of a controversial divorce - if the other does not consent - the court decides on the division of assets, maintenance, etc.
Mistake 9: Underestimated maintenance obligation
Conversely, the following applies to those potentially liable for maintenance: “A high earner sometimes quickly promises a generous amount of fixed maintenance. And do not consider that he might lose his job in a few years and will no longer be able to pay it with unemployment benefits, ”warns Gärner. If the maintenance regulation is formulated too rigidly, it can happen to him that the executor is at the door.
Mistake 10: Keeping up with “thumbs times pi” paid
"That usually happens when the divorce is not over yet," Wessely said. It would often happen that one pays the other plus the children a lump sum as maintenance. “That has great potential for arguments,” warns Wessely. It can quickly be said that one child is receiving too little support, it is unclear whether the paid ski holiday is to be taken into account, what was a gift, what was not, etc. Wessely: “There are clear rules and separate transfers for each person important. ”It is also better not to make any additional payments or support in kind. "Because months or years later, arguing whether purchases, rent payments, etc. should be counted towards maintenance or whether they represent voluntary additional payments, only creates difficulties and offers unnecessary potential for conflict in the separation phase," warns Wessely.
Error 11: Joint custody as a pledge
It was often the case in the past, divorce lawyers report: In order for the husband to get more money out, the mother's consent to joint custody was often used as a leverage. “In the past, ex-partners really let their mutual custody be bought off,” recalls Scheer.
With the new legal situation since 2013, this is largely over - so you shouldn't allow yourself to be blackmailed anymore! There must be good reasons why a divorced person does not continue to have custody if he is willing to do so. - By the way, this now also applies to unmarried parents. If parents cannot agree on joint or sole custody, the new law defines a so-called "phase of provisional parental responsibility" (also known as the "cooling off phase"), which generally lasts six months. During this time, the previous custody regulation remains in effect - for married people this means joint custody. One parent is assigned the main care of the child in his household, the other is given sufficient contact rights so that he can continue to care for and raise the child. To this end, the court often orders parental advice, for example ten hours.
Normally, at the end of the phase, both parents are granted custody. Apart from "tangible" cases such as violence or severe alcohol addiction, it is primarily only in the case of particularly poor communication between the parents that the court can only appoint one guardian for the sake of the child (it is about the "child's well-being"). But even then, the other parent has a contact right to be specified in more detail.
Tip: Take care of good communication in the first few months and give in to your ex-partner from time to time, even if that is difficult. It's for the child's good too!
Mistake 12: Forgot pension
"If you are dealing with a young, independent woman, you shouldn't overestimate the subject," says Perl-Böck. In a long-term housewife marriage, "where the woman may not start working again until she is over 50 and in the end will have far too few pension years for her own noteworthy pension," says Perl-Böck, the pension issue must be considered.
The law provides - traditionally intended for the earlier classic "housewife marriage" - a special regulation for married couples where the other has committed a serious misconduct. So, for example, moved out and moved in with a new girlfriend (divorce according to § 55 EheG with pronouncement of fault according to § 61 para. 3 EheG).
Important: In this case, the abandoned spouse should by no means file the divorce suit himself, but rather wait for the other's suit. Until then, he is entitled to the same maintenance as if the marriage was still functioning.And as soon as the “culprit” files an action for divorce, the other person will receive a full widow's pension as a “persistence bonus” - as if one were still married. Provided, of course, that the other dies earlier than you, and provided that the divorce results in a guilty verdict.
Mistake 13: First against divorce, then too late for divorce
Traditionally, for the reason just described, older women in particular were advised not to get divorced. But there are also counter-arguments: "Firstly, speculating with death is a bit macabre, and secondly, even in the case of an amicable divorce, you are entitled to a pension in the amount that you received from your ex before his death," Wessely puts this practice into perspective.
There are also cases, especially with older people, where an earlier divorce would have been better, as she explains. “For example, the man has left the woman, she remains in the marital apartment that is his property. The woman is getting older, may not make the many steps to the apartment and would like to move out. ”If she does it without a divorce, she cannot get the compensation she is entitled to in the course of a divorce and does not have the means to move elsewhere.
Now comes the problem: if she wants a divorce after all, she submits and would like to rely on the fault of her husband at the time in order to get a good living even after the divorce, she is unlucky if the reason for the divorce was more than ten years ago. “Ten years after the reason for the divorce occurred, the action for fault is in any case limited in time,” warns Wessely. Many are not aware of this.
Mistake 14: On the back of the children
Even if it is understandable that pain and hurt leave their mark - it should never affect children who are already suffering from the separation of their parents: “You always have to keep in mind that the child needs both parents,” advocates lawyer Perl -Bock to reason. “The worst thing you can do to your child is to cut off contact with the other parent. Badging the other parent in front of the child also causes lasting damage, which is like trauma, ”adds Gärner.
Summary: Even if it is certainly a very difficult exercise, it pays off for the sake of the children to put their own sensitivities aside.
Another example from practice: “If my ex and I have joint custody and I don't want the other to take the child from school, there is no way to prevent that. The police are not responsible for such a thing, the school cannot forbid it, ”said Perl-Böck. The only thing that helps: “Talk to each other, come to an agreement. This saves your child a lot of grief - and a switched on family court assistance, youth welfare, appointments with a psychologist and much more unpleasant.
Unfortunately, this is also always a topic with joint custody: “Two conflicting kindergarten or school registrations. Both apply in themselves, if neither withdraws, the court has to decide what is best for the child, ”says Perl-Böck. That takes, costs and continues to traumatize: "It is always good when no court is involved in children's matters," Perl-Böck concludes her warning.
Mistake 15: I go shopping, you car
One person always pays for the weekly shopping, invites you to go on a summer vacation, the other buys the car or designer furniture. What remains when the significant other split up? "The payments for purchases and vacation fizzle out", so lawyer Gärner, something like this is considered a gift. On the other hand: Whoever is on the bill for the designer armchair or who is the registered owner of the car remains the owner.
Scheer sees a slow change in the judicature in the direction of reclaimability, for example when one person has paid for and installed a new floor in the other's apartment - "but there remains massive uncertainty," said Scheer.
The advice of the legal experts, in unison: timely drafting of a partnership agreement, also known as a partnership agreement. It can also be written by the two of them themselves (better in writing for reasons of evidence), in which it is clearly agreed what should belong to whom in the event of separation and who should make which compensation payment. "Set up as a notarial act, the whole thing would even be immediately enforceable," said Gärner. However, fees are due for this.
Error 16: Not in the rental agreement
Two move into one of the rented apartments together, they fall out. It is clear here who has to go: the one who is not in the lease. On the other hand: “Assuming both are in the lease and neither wants to leave after the separation. It can be a long, grueling civil battle, ”warns Gärner. Even a landlord cannot do anything here, both are his contractual partners. It would also be better here: agree in advance who will move out of the two if the worst comes to the worst.
Mistake 17: Shared ownership without regulation
Not even better: The partners live in the shared apartment, after the separation neither of the two wants to leave. Or one wants it, but the other has to pay it off. In addition, it would of course only be fair if he had to pay the loan installments alone in the future. What he may not be able to do financially.
Here, too, it would have been better if a solution had been agreed in the course of the purchase of the apartment in the event that the relationship had failed. If one cannot reach an agreement in the course of the separation - for example, one pays the ex in installments over a certain number of years, with moderate interest - all that remains is to appeal to the court. And that takes and costs.
Error 18: Only one person leaves the job
A modern single relationship between unmarried couples is seldom the problem. But many also live the "classic" without a marriage license. Means: She has children and stays at home, he makes a career. What if the relationship fails? “We recently had a case, both were well educated, but she gave up the job because of the children, one day it was gone with her new friend. She was left with no job and an apartment that was far too expensive, ”says Gärner.
"Most men realize that they have to pay for their children, but paying for their ex is usually an effort," adds Perl-Böck. From a purely legal point of view, ex-partners are not entitled to maintenance, even if they take care of bringing up children for the sake of the other.
Important advice: Draw up a contract at certain times that regulates, for example, that in the event of separation, the partner who will stay at home for the children will receive limited maintenance in a certain amount until day X (for example, until the youngest child starts kindergarten).
Mistake 19: lying to the lawyer
Lying to your ex-partner is morally reprehensible. But not serving up the truth to your own lawyer is a serious tactical mistake that often turns into a financial disaster. Because in domestic divorce law, the question of fault is very important when it comes to maintenance, and sometimes it also affects the division of assets. On the other hand, if the lawyer knows in good time what was actually going on, he can tactically position himself appropriately for the client.
In practice, however, many are more buttoned up with their own lawyer than in their private life: "Many a client comes and inquires what the legal situation is like when their best friend is on the side," says one divorce lawyer. The professional will of course dig deeper in this case. . .
Mistake 20: Not asking the lawyer about the cost
“I notice when people come to me who are not satisfied with their previous lawyer,” explains lawyer Karin Wessely. The billing mechanisms are very different, and often the clients do not dare to talk about the fee in detail in advance. Or the lawyer simply says that it will be “charged according to the lawyer's tariff”. “However, the lawyer's fee can potentially cause insanely high costs,” warns Wessely: “In apportionment matters, assets are added up to the existing liabilities to an often very high value in dispute,” she warns. Means that debts actually increase the amount in dispute and thus the fee. It is often worked like this: "The clients should pay 1,000 euros on account, but after three or four months the next invoice for 15,000 euros or more comes up."
Her tip: "Either agree on a lower amount in dispute or - even more transparently - on a specific hourly rate." It should also be clarified how much a phone call costs. Because even these are surprisingly expensive for many. Wessely's advice: "Anyone who needs psychological care should better turn to friends or actually a psychotherapist," says Wessely, even the latter are usually cheaper than a lawyer who is called extensively in the first desperation.
"A lot happens in the first few weeks, so you should ask for an interim statement quickly," advises Wessely. She herself presents her price model transparently on the homepage.
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