impact of separation on Austrian visa status

July 20, 2012 5:40 PM

I have a sister about to go through a separation and likely divorce while in a foreign country. Would appreciate any comments/advice on the impact of the separation on the visa of the dependent husband, and how to prevent the husband taking the child out of country.

So - you guys are not our lawyers, etc. Sadly, lawyers will need be involved at some point soonish. Just looking for general advice, comments or resources.

My sister (unaware of this post) is separating from her husband - they are both foreign nationals (from the same country of origin) in Vienna, Austria. They have a 10 year daughter.

Their Austrian visas derive from my sisters employment status. He has the right to work under that spousal visa but usually doesn't as he has significant health issues. He is her dependent, both in financial and visa terms. The visa has recently been renewed for another 5(?) years.

Once they separate, what happens to his visa status? He is refusing to leave Austria but will be moving out of the marital home. As the sole breadwinner, she will have to support him for some period of time.

I am also concerned that he may attempt to take their daughter out of country (although he does not have control of the daughter's passport). He has stated that he wants to take her with him at Christmas to their country of origin. I think this is a very bad idea until everything is sorted out. He is already undermining my sister to their daughter, so I fear that this is heading in a nasty direction. His anger issues are a key component of the marriage breakdown.

Anybody familiar with Austrian visa rules, and/or Austrian or international law in these respects?

posted by anonymous to law & government (5 answers total)

She needs a lawyer who has dealt with expat divorce cases before. Her embassy should have either a list of lawyers or a women's support group/expat support group that can direct her to the right lawyer.

At the same time, she should alert the embassy that she's in a custody disagreement, and worried about her husband taking their daughter away. Austria and the US are both Hague countries for international child abduction, so there are some steps she can take now so that if he tries to apply for another passport or in any way take her, the border controls will be alerted. There's more here: http://travel.state.gov/abduction/country/country_518.html

She should be putting her energy into finding and choosing a good lawyer right now.
posted by viggorlijah at 7:14 PM on July 20, 2012 [1 favorite]

Your sister may well need both an immigration lawyer and a family law lawyer. International child abduction happens, and the recourse available depends on which international treaties/conventions the jurisdictions involved have committed themselves to (plus what their actual track record of cooperating is).

The best possible help you could get from metafilter would be a lawyer recommendation (though even that might be harder without knowing the country of origin). Next bet would be a helpful website. Any specific information anyone tries to give you, without even knowing the country of origin involved, could be more trouble than help.

This is too serious for her not to get legal help right away. You don't need to wait for a dispute to speak with a lawyer. It's better if you don't. The most helpful thing you can do for your sister now is to push her as hard as you can to consult with an actual legal authority, and send her the money if she needs it.
posted by Salamandrous at 7:17 PM on July 20, 2012 [1 favorite]

Definitely, definitely, definitely have her talk to her embassy. That's exactly where she needs to go, like, Monday morning.
posted by SMPA at 7:53 PM on July 20, 2012 [1 favorite]

Please encourage her to move her daughter's passport to the safest possible place, well outside the home, as soon as possible, just as a precaution while awaiting the expert counsel suggested above. She needs a lawyer immediately, and should not enter into any discussions with her husband about the financial support that she intends to provide or any travel plans.

If you can, please tell a mod what their country of origin is. Your question seems sufficiently anonymous and it will allow people to point you to more specific resources/information.

Sending good wishes to you and your family.
posted by argonauta at 7:58 PM on July 20, 2012

There is important info missing - it makes a difference what type of visa they have and how long they reside in Austria.
She will only get real help from a lawyer who is familiar with her circumstances and Austrian family and immigration law.

It all depends on the particular case: from my understanding, a dependant's visa is not automatically revoked after a divorce. However, the dependant has to fulfill certain criteria (income/healthcare/language proficiency/own apartment) to be eligible to stay in Austria if the divorce happens within the first 5 years of their stay in Austria.

But since the visa has been renewed for another 5 years it would seem that they live in Austria for quite some while already, and would point to visa type Daueraufenthalt EG -- which is a game changer.
Basically whatever she has, he has and the longer the stay the more grounds he has to independently seek right to stay. Do they live for more than 8 years in Austria?
The Daueraufenthalt EG (for the dependant they add Familienangehöriger) grants unlimited settlement with unrestricted access to the labor market - the permit itself is valid for 5 years and needs to be renewed but it does not change the fact that the person's right of residence is unlimited.

It is a pitty that you posted anonymously. To really be able to help more info is necessary.

A few more thoughts though:
Help your sister understand that there are different issues at play here.
She needs to take care of her divorce (mind you there are apparently different kinds of divorce -- establishment of guilt) and seek sole custody. She needs to take precautions so the daughter’s whereabouts are stable and uninterrupted. Inform the embassy and the school about the issue. (I am saying this based on the picture you painted, "his anger issues", "take their daughter out of country" - obviously an amicable solution where both parents remain happy and present for the child is always favorable. Your sister/you obviously know the situation - act accordingly).
She needs to inform the Aufenthaltsbehörde within a month of the divorce about the fact of the divorce. If the husband's visa is not the Daueraufenthalt EG they will inform him about the further procedures.
An informal separation where she provides financial support for her husband seems like a bad idea - this way the husband retains all and every right he currently has.
At this point she needs to look out for her and her daughter's best interest.

This is a service center for migrants in Vienna, although the women there focus on employment and residency, they might point your sister in the right direction or recommend a lawyer. This is a free hotline (gov. department sponsored / you call anonymously) that might provide some help. Depending on who your sister's employer is, they might have some type of counselor/advisor/other resource that would be helpful to her in this situation.

IANAL - answered to the best of my ability, laws/regulations are always subject to change.
Good luck.
posted by travelwithcats at 4:33 AM on July 21, 2012 [1 favorite]