Legal Separation in Georgia
Legal Separation & Separate Maintenance Agreements
How do you get a legal separation in Georgia? Under Georgia law, ceasing to have “marital relations” with the intention to divorce can be viewed as a separation of sorts. Breaking away to live apart can help you gain perspective on what you want. If you decide to separate from your spouse, but are not sure about dissolving your marriage, you should explore the pros and cons of a legal separation via a separate maintenance agreement.
How to Legally Separate in Georgia
Sometimes, a marriage in crisis can be saved by time apart to sort things out. When a couple is uncertain if a divorce is really necessary, they may consider having a legal separation lawyer in Georgia handle the matter.
In Georgia, there is no official legal action known as legal separation, however; you can have a lawyer prepare and file a separate maintenance agreement.
If you want to get out of a marriage in Georgia you have multiple options. Per the DivorceSource.com, “Georgia offers divorce, annulments, or separate maintenance. What are the differences in these options? A divorce ends a marriage; an annulment vacates a flawed marriage; and a separate maintenance order allows the court to rule on the marital issues surrounding the partnership, but does not grant divorce. In Georgia, separate maintenance can address important marital issues such as property division, finances, child custody and visitation for the period of separation.”1
Why Get a Separation Agreement?
Although there is no legal requirement for getting a “formal separation agreement” there are distinct advantages to having things set on paper. Without a separate maintenance agreement your spouse retains a lot of control. They could dispose of marital property, liquidate assets, and even make critical healthcare decisions for you if you become incapacitated. When your lawyer drafts your separate maintenance agreement you should also consider language to address potential future actions of your spouse.
What kind of future actions? Financial problems caused by your spouse. While you could claim unknowing spouse and escape responsibility, you could save yourself the misery by including a few extra terms. Per the Protective.com website, “After separation, spouses are typically responsible for any new debt they take on individually. However, if there is debt or other outstanding financial obligations that you acquired as a couple, you are both responsible for those obligations. A legal separation agreement can specify which spouse is responsible for which debt so there is a clear understanding.”2
Benefits of Legal Separation in Georgia
Living apart means redefining how you live and the terms of your relationship. You’re still legally married but your daily life is now much different. Filing a separate maintenance agreement can mitigate the chances of further conflict in your new situation.
A separate maintenance agreement establishes boundaries, limitations, expectations, and responsibilities. Much like
The process to retain property in a separation depends solely on the Agreement you negotiate with your spouse. As stated on the DivorceNet.com website, “Georgia laws prohibit judges from dividing or assigning property in a separate maintenance claim. In other words, if you would like to split marital assets with your spouse, you must file for divorce.”3
A very compelling reason to postpone or avoid divorce is that a separation permits a couple to enjoy certain advantages of being married. These advantages include being able to file taxes as married, being able to be added to your spouse’s health insurance, keep the door open for spousal financial benefits such as social security.
Specific to Alimony and Child Support
If your separation involves a need or desire to obtain spousal support (alimony) or child support payments, the matters will be goverened by Georgia Code O.C.G.A. § 19-6-10. This law pertains to “Voluntary separation, abandonment, or driving off of spouse – Petition for alimony or child support when no divorce pending – Order and enforcement; equitable remedies; effect of filing for divorce”. Specifically, the law reads as follows:
“When spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, either party, on the party’s own behalf or on the behalf of the minor children in the party’s custody, if any, may institute a proceeding by petition, setting forth fully the party’s case. Upon three days’ notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.”4
An update to this law in 2021 addressed the effect of subsequent cohabitation between spouses on permanent alimony. The addition to the existing law states:
“The subsequent voluntary cohabitation of spouses, where there has been no total divorce between them, shall annul and set aside all provision made either by deed or decree for permanent alimony; provided, however, that the rights of children under any deed of separation or voluntary provision or decree for alimony shall not be affected by such subsequent voluntary cohabitation of the spouses.” 5
Eligibility for a Separation Agreement
In order to be able to file a petition for legal separation you must be able to meet very basic requirements.
- be able to prove you are legally married
- not have an active divorce filing
- be able to prove a “bona fide state of separation” (cease marital relations or live apart)
Can You Date While Legally Separated in GA?
Is it legal? Im’ separated, why not? Certainly you could go through with it, but only with the risk of weakening your position in a subsequent divorce process. Legally, there is nothing wrong with having a meal with someone. However, whille still legally married, having sexual relations with someone other than your spouse is adultery.
Technically, adultery is illegal in Georgia. Specifically, Georgia Code of Crinal Conduct establishes that, “A married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse and, upon conviction thereof, shall be punished as for a misdemeanor.”
Repercussions from adultery include disqualification form eligibility to receive spousal support, and potential negatives related to matters of property division. That aside, there is the issue of moral judgment by others.
If you’re not quite ready for a divorce but need some space and time, contact our family law attorneys for a friendly consultation. Get answers to your questions and learn more.
CREDITS and FOOTNOTES
- 1 Staff Writer, “Georgia Legal Separation”, May 17, 2011, Available from DivorceSource.com
- 2 Staff Writer, “Legal separation vs. divorce: know the difference”, September 12, 2018, Available from Protective.com
- 3 Lisa Guerin, “Divorce and Legal Separation in Georgia”, January, 21, 2009, Available from DivorceNet.com
- 4 Staff, “Alimony and Child Supprt”, 3-17-2010, Available from Justia
- 5Staff, “Effect of Subsequent Cohabitation Between Spouses on Permanent Alimony”, 4-22-2021, Available from Justia
- Photo by Alena Darmel, available at Pexels