Legal Separation and Divorce in Georgia

Legal separation, as opposed to divorce, is not well-known in Georgia. A legal separation is one step short of divorce. You and your spouse are still legally married but have chosen to live separate and apart. "Legal separation" is simply a phrase often used by people in Georgia and many other states to describe obtaining a statutorily authorized separate maintenance order.
Georgia law does not provide for legal separation. However, it is also mischaracterized as pursuing a "separate maintenance action." Rather, we can pursue a Complaint for Separate Maintenance, which is still a divorce action albeit without filing for divorce. It is essentially the same as a divorce action, but without pursuing its dissolution. Georgia statutes (ยง19-6-10) describe a separate maintenance action as necessary to determine the custody, support, and property rights of the parties when the parties are separated but want to remain legally married.
The benefit of a separate maintenance action is that you do not have to put your marriage through the process of dissolving it through divorce. You can have the equivalent effect of a divorce, but without the associated stigma that comes with the filing for divorce. Additionally, because you are still married, you may be able to share that "married" insurance plan .
However, since there is no statutory ground on which to obtain a legal separation and because no waiting period is provided (as with a divorce), separate maintenance actions only make sense in certain situations. For the most part, if you and your spouse have reached the point where one of you wants a divorce and the other does not, pursuing a separate maintenance action is pointless and will only postpone the inevitable divorce. In other words, it is imprudent to pursue a separate maintenance action and still hold hope that the marriage can be repaired and a divorce avoided.
However, cases exist where a separate maintenance action is appropriate. Perhaps the parties’ religion frowns upon divorce. Or perhaps the parties are seeking an uncontested divorce, which is parties agree on every single area of their case, and need to obtain meritless temporary orders. In such cases, either a legal separation may be pursued in an attempt to put a stamp of approval from the Court on a mutual resolution of all outstanding issues or a temporary order may be sought for child support and visitation, alimony, and even equitable division of marital property.
Thus, while a separate maintenance action is largely unnecessary, it does serve a purpose in a limited number of cases.

The Legal Separation Process in Georgia

The process of legal separation in Georgia starts with the parties filing a petition for separation with the appropriate court in Georgia. This is a prerequisite to divorce in Georgia and a Judge can approve an Order of Separation as a matter of law.
The petition for separation includes relevant information such as the names and ages of the parties, the date when they were married, details regarding children if the parties have minor children, property and debts owned by the parties, alimony, attorney fees, contempt matters or any other issues the parties may have.
Most parties do not contest a separation and the Court will enter an Order of Separation unless something is wrong with the papers when filed. If the Court finds the pleadings in order and There are no issues in dispute, many times the Court will grant the petition for separation that very same day. The petition for separation carries an effective date of the date of filing of the petition for separation.
Once the separation is entered, the parties must still wait a period of thirty-one (31) days before they can proceed with any action for divorce. Thus, the real benefit of filing for separation is that you can have a definitive court order signed by Judge awarding the parties alimony and temporary awards without the necessity of having a Final Judgment of Divorce. If the parties cannot agree on the terms of the separation, then the parties must litigate the separation issues before a Judge.

Pros and Cons of Legal Separation

The advantages of legal separation in Georgia are often the same as those used to make legal divorce desirable. However, a legal separation is much easier to undo. Since a legal separation does not end a marriage like a divorce does, both spouses can feel free to reconcile and reunite without having to dissolve their marriage a second time.
Taking the time to legally separate rather than divorce gives spouses a chance to see if the separation brings about the changes necessary for them to reconcile and live together again. If, after a period of time, one spouse wants a divorce, a legal separation in Georgia can make a lot of sense.
In general, legal separation is cheaper than a divorce. A divorce requires mediation, a temporary hearing, and a final hearing. A legal separation does not. This means that there is generally less time spent and less effort put into a legal separation than a divorce, so legal fees are usually cut in half.
There are drawbacks to a legal separation. If you and your spouse are certain of wanting to divorce, then you may simply want to take the step of getting there and be honest about it. Even if the parties are undecided but think divorce is the most likely outcome, a temporary hearing during a legal separation can be terribly uncomfortable. It involves a judge deciding who gets the house, which parent the child will spend more time with, and other life-altering decisions that you and your spouse may not be ready to make. A temporary hearing is thus generally reserved for couples with real hopes of saving their marriage.
Before making a decision, couples should consider the potential financial implications of a legal separation or divorce. Divorce, for example, may offer greater long-term financial security, while a legal separation could be less financially burdensome on a short-term basis.
Legal separation also has significant implications for child custody arrangements and support. For couples with children, yet another factor to consider is how legal separation could affect child custody and support arrangements.

Child Custody and Legal Separation

Legal separation in Georgia does not impact child custody. If you have child custody issues either during a separate maintenance action or beforehand, you are still required to follow the same child support guidelines and child custody statute prior to a legal separation as after a legal separation has taken place.
A Decree of Separate Maintenance in Georgia will include provisions for child support and visitation. The court will look at these provisions when entering a final ruling on child support and child custody during a divorce proceeding. If there is an agreement between the parties regarding these issues, the court will usually accept the agreement. If the agreement is not acceptable to one of the parties, he or she can always request a hearing before a Judge or submit a Motion to Adopt a Parenting Plan to finalize issues regarding child custody and child support.
Clients often wonder whether the time spent on a legal separation will cut into the time to get divorced in Georgia. Remember, Georgia does not require a period of legal separation prior to filing for divorce. It is permissible to file for divorce and a separate maintenance action on the same day. Therefore, your time divided by the time spent living apart from your spouse is not 50/50 but rather up to the day you file for divorce with the Courthouse. In most cases, the issues brought up during a Separate Maintenance action can be dealt during the divorce action to reduce the amount of time the case takes.

The Financial Aspects of Legal Separation

While there are numerous reasons for seeking legal separation in Georgia, one of the most common is the desire to gain an official status change before pursuing divorce. For many couples who separate sooner rather than later, there is no doubt that cohabitation will cease either immediately or within a short period of time; however, ending a marriage even in law can be a complicated process, requiring exhaustive paperwork on place with the court in order to uphold its enforceability in all matters of finance, property and assets. The first implication of legal separation is, of course, for those obligations which must be met on a monthly basis. Medical insurance, for example, may continue under the primary breadwinner (too often an assumption that proves entirely detrimental in the long run), and those costs should be maintained while the parties await their official legal statuses. Further, housing, food, and other basic needs will need to be met in everyday life, summing to greater amounts than may be covered through a single income in the time-faming of a separation. For these reasons, many people find themselves conducting a more thorough analysis of their financial situation during this period, learning earlier on how best to allocate their resources in terms of equity. To that end , the current state of all financial holdings, both within the name of each spouse and jointly held, must be fully assessed. Long-term, when striving for fairness in divvying of assets, this will prove quite beneficial for both parties in divorce. Those who seek legal separation must also consider how this will impact the couple’s outstanding debts. All debts in the ownership of both spouses will remain that way, and if one spouse is aware of an existing debt while the other is not, the former may be subject to separation agreement language or even penalties in the absence of full disclosure of finances. If full disclosure does not take place, a court will step in to impose light of the matter and a decision as to the distribution of debts. As with all legal matters, the best approach to handling your upcoming legal separation is by speaking with an experienced Certified Financial Planner who has years of experience preparing for divorce, ensuring your financial needs are best met. Further, those who are already married may wish to consult both a divorce attorney and a financial planner before filing for separation, as the simplest of actions in this period could prove detrimental to the future of your divorce.

After Separation: Reconciliation or Divorce?

Once the couple has fulfilled the requirements of a legal separation in Georgia, there are essentially three possible outcomes.

  • Reconciliation. After a period of separation, previous knowledge and familiarity can help both parties come to a reconciliation and agree to proceed with working on their relationship. The decision to reconcile within a reset separation period is a private decision for the couple. However, if the couple has done the work necessary to eliminate the problems leading to a through separation, then a reconciliation is a reasonable possibility that could lead to undoing some or all of the terms of the separation. A reconciliation may involve engaging a marriage counselor, spending a significant amount of time together to remind themselves why they married in the first place, mutual understanding of each person’s needs for the future and other proactive measures to ensure the problems will not arise in the future.
  • Alternate arrangement. In some cases, the couple can agree to go their separate ways in an alternate arrangement. This could be a new location for one or both parties, such as moving in with family or friends. In other cases, the couple may agree to a trial arrangement in which they both pay strictly for their own expenses, separate and apart from each other, with no financial support to the other party at all. This model is similar to a roommate arrangement, but with an additional level of spouse duty and allegiance to the alternate arrangement.
  • Divorce. If the two cannot agree to an alternative arrangement or find a suitable reconciliation to their problems, the end result of the marriage is more than likely divorce. Once the period of legal separation is over, living separately for that period does not mean the couple will automatically be granted divorce. Other divorce elements must be also addressed and accomplished.

Common Misunderstandings About Legal Separation

One of the common thought processes surrounding the issue of legal separation is that it is a step along the way to an absolute divorce. While that is sometimes true, it doesn’t have to be. A court can issue an order of legal separation that lasts for the rest of your life if you and your spouse never divorce. The "or" in that sentence is probably what throws people off. One can legally separate even when a divorce is not in the cards.
Another misconception about legal separation is that it carries the same legal benefits as a divorce. Those who have been through a divorce know that it requires one of the spouses to decide that they are uncomfortable in the marriage to a point where they feel the need to proceed with this legal action. However , legal separation doesn’t require this. It is a mere agreement legally separating two parties without requiring any sense of loss by either party.
This may seem odd to some people. However, the state doesn’t want to break up happy marriages. Legal separation is thus a means to ensure that any unhappy marriage can undergo a process of separation. It does NOT mean that the couple has given up all hope of reconciling.