Finding a good lawyer in Austria

As a foreigner it can be a daunting task to find a good lawyer when you do not have yet the proper contacts to point you in the right direction.

In my case, as I have written in a previous post, my first lawyer was dishonest and only interested in money. When I eventually fired her, i decided to go back to the "Beratungsstelle für Frauen" for advice. They directed me to two main lawyers who work majorly to help women in situations such as mine. The recommendations I got were:

1. Dr. Helene Klaar - Prinz Eugen-Straße 34, 1040 Wien.
Tel : 015050462
E-mail: office@ra-klaar-marschall.at
(A tough, self proclaimed feminist, very well known in Austria for advocating women's rights)

2. Dr. Christine Kolbitsch - Taborstraße 10, 1020 Wien.
Website: www.vana.cc
Tel: 01214771030
E-mail: kolbitsch@vana.cc
( A tough lawyer as well fighting for women, and my current law firm)

I chose Dr. Kolbitsch's law firm for the simple reason that I got an appointment much faster at her law firm and was very impressed at how the lawyer dissected my case in a few minutes. The lawyer I speak of in this case is Mag. Sonja Aziz, whom I find absolutely brilliant, and possesses
a very high sense of deductive reasoning.

Besides the obvious advantage of fighting for women's rights, I also found it a major advantage that Dr. Kolbitsch's law firm generally doesn't charge the women recommended via the Beratungsstelle any fees for phone calls made to the court or with the client. It doesn't sound like much, but it is when you consider that you normally pay phone charges to the lawyer by the minute. I have also found it to be in a sense therapeutic when I can call my lawyer to discuss any developments in the case, and basically pour my heart out to the one person who understands what I am going through just about as much as I do.

On reading my case files, Mag Aziz quickly deducted that my problem was that I had been making several small irrelevant arguments in my case when the main argument was obviously a breakdown in communication, which is the one main reason, besides violence and drug addiction, that child custody can be awarded to one parent in Austria. Our first strategy, therefore, would be to put all the arguments together and direct them into one cohesive appeal showing inability of effective communication, stemming from him, as the reason I was seeking sole custody. The 13 page document that was the result of this effort looked like it just might work.

The failure of joint custody

For a marriage that ends amicably, with both parties still able to maintain some semblance of communication, joint custody could work. However for an ugly divorce like we had, I think imposing joint custody on the parents does far more harm than good. The argument from the Austrian court system is that it is in the best interest of the child to maintain joint custody, regardless of the prevailing circumstances. I still can't, for the life of me, understand how it can be in the best interests of the child when the parents cannot even stand the sight of each other.

In my case the first disagreement came about when I decided to vaccinate the child and he didn't. He filed a case against me at the jugendamt to stop me. We had to start having weekly sessions from then to discuss this "problem". For someone as extroverted as he is, and me being rather introverted ad not speaking German well, he dominated the meetings, accused and basically drove the conversation without the social worker making any effort to stop him. After the a couple of sessions ended with no clear consensus, I simply called the social worker and asked her what to do concerning vaccination, and she told me to go ahead with it, because despite having joint custody, both parents are still allowed to make decisions independently if they feel it's in the best interest of the child. (Shaking my head at this point). We ended wasting a year at the jugendamt doing some kind of "mediation", discussing hot topic issues like I left my widows open and the child might fall out, I took her to kindergarten when she suffered a runny nose, and other similar stupidity. It got so bad  to the point where my ex dominated the meetings that even the social worker squeeze in a word edgewise when my ex began his soliloquys. She decidedly invented a "game" where she put a stuffed animal infront of him when he needed to say something and when she took it away he had to stop. That's what my life was reduced to. I told her over and over that this was psychopathic behaviour he was exhibiting, and it was part of the reason I left the marriage, but the show went on.

In the meantime he tried to file for sole custody in court but this was ignored.

I also mentioned to the jugendamt that he suffered from ADHS and  apparently it was serious enough that he couldn't hold employment and was therefore paid unemployment money. In my opinion if someone is sick enough not to be able to hold a job, raising a child, which is one of the most important jobs, he certainly cannot perform it satisfactorily. The answer I got was that even psychopaths can raise children, so this argument was invalid. I also told the social worker  that it was clear my ex was manipulating the child against me from the things she began saying to me. This was all ignored.

At the end of one year I was so fed up because I felt they tried to favor him although they saw that mediation hadn't worked due to him particularly, so I filed in court for sole custody and told them I would not sit in a joint mediation anymore. I asked the social worker to write her recommendation to the court and let go of the case. Their recommendation was simply that we were counter-accusing each other and that the best solution would be to maintain joint custody but change the contact from daily basis to him getting every second weekend Friday to Monday morning in kindergarten and one overnight stay during the week he doesn't have the child. The holidays would also be split 50/50.

With the case still in court, he accused me again at jugendamt of endangering the child's welfare for whatever reason. We got a new social worker as the old one had left (possibly fired for being lousy at her job) and this time it turned out to be  a man, something my ex had been constantly demanding, claiming bias against him by women. I went in for one solo session with this social worker (Herr. Mondschein) and he simply told me in my case there had been injustice served, i was basically a single mother almost paying everything for the child and subjected to bullying for one year from my ex-husband. He told me he didn't see the need why I should be subjected to this any further and he would immediately close the case and ask that my ex begin to pay child support immediately. (I had also complained about thus to the previous social worker but she shut me down and told me that at jugendamt they don't discuss money, and if this is a issue  I should take it to court. I did. Later on I found out they do handle this themselves in a different department.

The entire case was now in court and this time round I had a lawyer.

Life in the "frauenhaus" (Women's Shelter) in Austria

To state that the Frauenhaus was a great help, is an understatement. Right at the entrance the feeling of security is assured. On ringing the doorbell and giving your name, you must look into a security camera to prove your identity. Once you go through the first door, there is a second door through which you can go through after a second security check. Th i is helpful in keeping out vindictive fathers who I was told had tried to exact revenge in the past.

Once inside you are welcomed into a wonderful apartment block, much like any other in Austria.

I got a 45sqm apartment to myself, a kitchen that was constantly stocked with healthy fresh food,  diapers, clothes for the child (and for myself if I had wanted) and finally PEACE! This feeling can only be well understood by a person who has had the misfortune of experiencing how suffocating a bad marriage can be. 

At the frauenhaus I also had a dedicated social worker, a wonderful lady called Elizabeth, and we had an in-house psychologist who would help deal with the stress we had gone through. 

In addition to all this we had evening  activities that brought the mother's and children together, things that might sound trivial, but for many in our situation brought about the relief of not being totally alone in your situation.

The Frauenhaus was a wonderfully positive experience for me and I would advice any woman going through a tough time not to hesitate to seek this refuge.

Lawyers fees in Austria

 

Anwaltskosten

Das Erstgespräch

Das erste Gespräch beim Rechtsanwalt ist nur kostenlos, wenn es ausdrücklich vereinbart wurde oder der Rechtsanwalt eine kostenlose Erstberatung angeboten hat.
Denn auch im Rahmen der Erstberatung erbringt der Rechtsanwalt bereits eine Leistung, die nach dem Tarif abgerechnet werden kann – selbst bei Telefonaten.

Davon zu unterscheiden ist die Erste Anwaltliche Auskunft der Rechtsanwaltskammern. Bei dieser erhalten Rechtsuchende in einem Orientierungsgespräch kostenlos Auskunft von einem Rechtsanwa

Verrechnungsmöglichkeiten

Die vom Rechtsanwalt erbrachte Leistung kann als Pauschalhonorar, Zeithonorar oder nach Tarif verrechnet werden. Möglich ist auch die Vereinbarung eines Erfolgszuschlags.

• Pauschalhonorar
  Dieses bietet den Vorteil, dass man die Kosten von Anfang an kennt. Voraussetzung dafür ist, eine gute Abschätzbarkeit der Arbeit, die zu erwarten ist.
• Zeithonorar
  Hier wird die Höhe des Honorars pro Zeiteinheit vereinbart. Die Höhe des Honorars hängt vom Schwierigkeitsgrad der zu erbringenden Leistungen ab. Der Rechtsanwalt muss nicht nur über die Art der Leistungen sondern auch über den Zeitaufwand Aufzeichnungen führen.
• Abrechnung nach Tarif
  Basis dafür sind das Rechtsanwaltstarifgesetz, die Allgemeinen Honorar-Kriterien oder das Notariatstarifgesetz. Das Rechtsanwaltstarifgesetz gilt für rechtsanwaltliche Leistungen in Zusammenhang mit gerichtlichen Verfahren, aber auch wenn eine Vereinbarung zwischen Rechtsanwalt und eigenem Mandanten fehlt.
• Pflegschaftsachen, mit Ausnahme von Unterhaltssachen,
  €5.200
   

Jugendamt

The Jugendamt (Child Welfare Services) is not part of the court system, but a government agency tasked to take care of children if their welfare is in danger or their interests are at stake. However the court system depends greatly on the advice of the Jugendamt when it comes to custody disputes.

In custody disputes, the court will always involve the Jugendamt and ask them to assess the situation and make a recommendation. Despite being simply “recommendations” in reality the judge will go with them. In light of this I have heard it repeated often that the Jugendamt has a very bad track record when it comes to dealing with parents who are not Austrians. In my case, I cannot conclusively say it was biased against me. It fully depended on the social worker and perhaps their education or experience, and therefore their capability to identify a psychopath. I had two social workers who fully took my side after meeting my ex-husband just once, and I had those that sided with him based solely on him being an Austrian.

As part of the settlement I had grudgingly agreed to have my ex-husband take the child daily from kindergarten in the afternoon, and bring her home to me by 6pm, as well as overnight stay every second weekend. Again, as a foreigner, no money, no legal representation, I was terrified of having a custody case drag on for years in court, and psychologically I was already battered. I needed peace.

The first Jugendamt session I attended was in the 10th district where the social worker appointed to our case very visibly showed her unfriendliness towards me (in front of my Frauenhaus social worker – my social worker was quite angry and stated that if this happened once more she would write an official letter of complaint to the Jugendamt. Luckily before I had to deal with her I was given my own apartment in a different district, and therefore wasn’t under the 10th district jurisdiction anymore).

Soziale Arbeit mit Familien, 10.Bezirk, Team B - MA 11 - Amt für Jugend und Familie

Favoritenstraße 211 (Dachgeschoß, 7.Stock)

1100 Wien

Our case was moved to the new jurisdiction in the 4th district. Here I met a relatively young social worker who wasn’t quite prepared to deal with my ex-husband in my opinion.

Soziale Arbeit mit Familien, 1., 4., 5.Bezirk - MA 11 - Amt für Jugend und Familie

Favoritenstraße 18

1040 Wien

I remember my ex-husband complained that my apartment was a danger to my daughter, that there were electrical sockets hanging loose from the walls, and I had my windows open and therefore the child could fall out the window. (At this point in time I still felt we could have some semblance of communication and civility towards each other, and therefore I still invited him to my new place and even let him have a few minutes with us – apparently he was on spy mode). Well the new social worker and her boss arranged a home visit to my apartment where they went through everything. They concluded that there was no danger in my apartment. 

My ex-husband didn’t let up. I later learnt that he went to the head of the Jugendamt and shouted so loud that he brought “business” to a halt in the building. A second home visit was demanded of me. I reminded them that I was living in a government apartment, run by the Frauenhaus, and before moving in a government inspector had to be sent to ensure that everything was in order. I will never forget their response. I was told that as long as one parent registers a complaint they must look into it, regardless of how stupid or trivial it is, and this is an eventuality I have to prepare for the rest of my life (or his life, hopefully – sadly I’ve been told assholes’ funerals come quite later in life as one would wish for).

Additionally to this, my daughter began crying pitifully anytime she had to go to her father. He would get angry and hold her ransom, telling her she doesn’t love him, even though he loves her very much, and I think this just drew her farther away from him. I was again reported to the Jugendamt where my social worker told me it was my responsibility to prepare the child to go to her father. I was informed that whether she cried or not, she had to go, that was it. (Up to this point I was of the opinion that the child’s needs were put first, but I found out that it depends – on what, monthly periods? I can’t say). I was hammered. I had to watch my screaming child taken away daily, and simply retreat to my apartment and cry my heart out.  While the separation from my daughter was traumatic for me, what she was actually going through alone with an unstable mind was ripping me apart. For one, he is by nature a very forgetful person, and the child would come home after a whole day with him really hungry, telling me she hadn’t eaten all day. When I asked him about this in the presence of the social worker, I was informed that going one day without eating for the child isn’t so tragic. More tragic would be denying her contact with her father. The two things are apparently mutually exclusive – if I would at least cut down the visits to only afternoon, then I’d be denying contact to the father (which apparently supersedes all other needs, even basic ones like food). The threats he made to her, that he would leave her when she cried, so I could be both her mother and father were considered simply him being emotional – to be ignored.

We then had a weekly appointment together with the social worker to try and mediate our differences. My ex-husband dominated the talks, came with witnesses, wanted to record the sessions on his phone, wanted transcripts of the conversations, all of which the social worker refused, yet was still incapable of seeing through him. The talks were simply one sided – he tried all means to show that I was a bad mother, and spoke non-stop. It got to the point I asked her what was my reason for being there if only to listen to him talk, this was no mediation. She agreed to this and decided on a “playful” method of communication where she would place a stuffed animal in front of him and he would only speak up to the point she would withdraw it, and then he had to stop and let me speak.

In the meantime I had repeatedly told them that he had suffered from panic attacks for more than 10 years, he had ADHS, which diminished his ability to take care of a child so young, he had no job, and even while married several times we had had to ask for help from friends for food and he was addicted to sleep and anxiety drugs.  All this was ignored.  I also consistently complained that he wasn’t paying the €100 in child support but I was told that we absolutely could not discuss money at the jugendamt. For this I would need to go to court.  As long as there was no apparent danger at the moment, nothing could be done. Out of nowhere my ex-husband filed a case against me in court that he wanted his weekend contact to the child to be increased to Monday (so Friday till Monday evening).

I called the social worker and informed her of this and told her there was no more need for mediation. We were headed to court. He report mentioned that she saw no immediate danger for my daughter from the father, and the arguments arising from me were too weak to change the custody arrangement. She would recommend joint custody to remain, but that we shouldn’t be allowed any contact as parents to each other, with a new arrangement detailing him having her every second weekend till Monday in kindergarten, and the rest of the time with me, with one day overnight on the week that she wasn’t with him. Additionally we should be made to undertake more intensive mediation as parents (after having undergone it for 1 year and failed).

Before we could challenge the recommendation, the social worker quit her job. It’s worth noting that my ex-husband had often complained that as a woman she had favored me and never took him seriously at all, and he wanted a man. Well, he got his wish and the next one was a man. I told him right off the start that I didn’t want any more meetings together with my ex-husband. I would only do a one on one with him. This was accepted.

I met the new social worker and the first thing he said to me was that he had met my ex-husband two days before and this was one of the most difficult personalities he had ever met in his life. He mentioned that such personalities one meets only once or twice in life, and hopes never to meet them ever again. He told me he felt very sorry for me, and he could not understand why his colleague had prolonged such an irrelevant case for 1 year. He told me about earlier instances where my ex-husband had shouted in the office to the point of paralyzing work in the offices. He also said it was very shameful that a man could not pay just €100/month upkeep for his child, and he would talk to him about this. He told me he would close the case immediately and I could then focus on my job (the sole source of income for the child), which was already suffering due to the intensity of meetings and calls.

This one social worker was a major relief for me! However in totality the jugendamt had failed me. The toll that this one year took on my life is indescribable. They took a good mother and tore her psyche to shreds with endless discussions held forcefully with a man who sucked the very life out of me. I will never be the same again.

My divorce in Austria

My divorce lasted a total of two sessions in Austria.

In the first session the judge asked both of us the 3 questions mentioned in the previous section. We did not agree since my ex-husband wanted sole custody of our daughter and for me to pay him spousal support based on future earnings. (His logic was that I was too busy studying to manage childcare, but I would subsequently get a good job after graduation thanks to my hardwork! and should therefore pay him to stay home with our daughter). 

My biggest mistake during the divorce was not having legal advice. I could not afford it and therefore I went to court hoping that my ex would play fair. 

I will never forget the warning the judge gave me - if we didn't agree by the next session on the three points, then the case would become contentious and potentially last for years. With hindsight, I wish I wouldn't have taken the bait. Of course the judge simply wanted to get the whole thing over with, add it to his list of "fait accompli" without any regard whatsoever to the lives affected with such a decision thereafter.

Being all alone, no money for legal help and just starting a new internship at a good company, I decided to get it done with, and in April 2013 I signed the divorce settlement that gave us both joint custody. He got to keep all the matrimonial assets, neither of us would receive matrimonial support ("unterhalt") and the child would live with me but he would pick her up from kindergarten daily and bring her home to me at 6pm. Also he would get a every second weekend with her. I simply wanted out, and I thought if I gave him everything he wanted, he would finally let me go and leave me in peace. Second biggest mistake of my life.

Grounds for divorce in Austria

There are three forms of divorce acceptable within the Austrian Judicial system:-

Divorce on the ground of fault “Streittige Scheidung”

A spouse may request a divorce if one has culpably disrupted the marriage by an aggravated matrimonial offence or through disgraceful or immoral behaviour, so that reconciliation cannot be expected. The demonstrative examples are adultery and the infliction of physical violence and severe mental cruelty. The court will then try to determine which party is at fault for the breakdown of the marriage and if this is proven guilty they must pay maintenance for the other, the amount of which depends on the spouses’ financial circumstances.

Note that if a judge has to determine fault in the divorce, the proceedings can last upto 2 years or more.

Divorce due to an irretrievably broken marriage

This can be due to one spouse's behavior resulting from a mental disorder, or if one spouse suffers from a mental illness or an infectious disease or medical condition which cannot be expected to be cured within the foreseeable future. A petition for divorce will not be morally justified in case of undue hardship for the spouse concerned. After six years of judicial separation, a divorce decree must be granted if requested.

Divorce by mutual consent “Einvernehmliche Scheidung”

This provision requires that each spouse makes a declaration conceding that an irretrievable breakdown has occurred. If an agreement has been reached with or without mediation, the marriage is dissolved by court order (“Beschluss”)

Before the divorce is granted, both parties must agree on three important aspects:-

• Custody (“obsorge”) of the child(ren), its future principal residence as well as frequency of contact of the other parent. (Note that since 2013 custody in Austria is always by default joint custody, except there would be very serious circumstances why one parent should be denied this. Interestingly,  mental illness is not considered one such circumstance for denying custody.)
•  Financial maintenance of the children
• Division of  matrimonial property and maintenance of a spouse.
  If there are matrimonial debts and there is no agreement between the spouses on who should settle them, the court can determine which spouse shall be obliged to pay the debts

If no agreement can be reached on these three things, then the divorce automatically goes into “Streittige scheidung”, which means the final decision will lie with the judge.

To read more about this go to http://ceflonline.net/wp-content/uploads/Austria-Divorce.pdf 

 and

 http://uk.practicallaw.com/7-568-0448