Legal Separation in Georgia
Legal Separation Via Separate Maintenance Agreement
What is Legal Separation in Georgia?
Legal separation is a way for a married couple to live apart and have legal protection regarding finances, property, child custody, visitation, and support payments etc. The state of Georgia does not recognize a legal status of “separated”. Instead, Georgia offers couples the benefits of a Separate Maintenance Agreement.
How do you get a legal separation in Georgia?
If you decide to separate from your spouse, but are uncertain about getting a divorce, you should explore the pros and cons of legal separation via a separate maintenance agreement. Under Georgia law, ceasing to have “marital relations” with the intention to divorce can be viewed as a separation of sorts but that does not protect you from certain legal risks.
The Legal Separation Process
The process to get a legal separation is very similar to filing for divorce. The key difference is that while you are legally separated, you are still legally married. As it is with filing for divorce, there are certain things that you must state the “grounds for the legal separation”. This includes spousal misconduct or simply that both parties want to separate. Additionally, your separate maintenance agreement should address key aspects of living apart. This includes:
- Who gets to live in the marital home
- Any spousal support
- Control of financial accounts (i.e., bank accounts, investment accounts, etc.)
- Assignment of responsibility for marital debt
- Possession of physical marital property (i.e., real estate, vehicles, boats, etc.)
- Matters concerning minor children (i.e., custody, visitation, child support, grandparent rights, etc.)
Why Get a Legal 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.
how to legally separate in georgiaA 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
What are the rules for legal separation in Georgia?
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)
How long do you have to be separated before divorce in GA?
In Georgia, a couple is not required to be legally separated before filing for divorce. This means that there is no time requirement of separation to get a divorce.
How long does it take to get a legal separation in Georgia?
As mentioned, you’re technically legally separated if you have ceased to have marital relations of have moved out with the intent to file for divorce. You could begin the legal separation process (meet with a lawyer, start paperwork, etc.) most anytime. Generally speaking, you could get a separate maintenance action to be in effect in 6 weeks or so. Litigation (negotiating terms) can delay the process, so the time it takes varies among cases.
How much does it cost to get legally separated in Georgia?
The cost to get a separate maintenance agreement depends on the amount of time a law firm has to spend on your case. If your situation is relatively simple (no minor children, etc.) it could be around $5,000. If you have minor children, complicated finances, and similar factors your case will cost more. The good news is that money spent on a well-prepared separation action can lower the costs of a future divorce. This is because your Agreement provides a solid structure for updating terms instead of starting from scratch. Additionally, because after you’ve had time to live with it, if you do file for divorce you will know how to improve your legal situation.
If money is an issue you should hire a law firm that offers financing options for legal services.
Why not just hire the cheapest lawyer? The terms of your Agreement (or divorce) are something you have to live with. A cheap lawyer often makes a lot of mistakes that brings years of misery to their clients. Isn’t your main goal to make your life more enjoyable?
Can You Date While Legally Separated in GA?
Legal separation in Georgia and dating is a common area of discussion. Is it legal? I’m 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 from 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, and potential mental harm to children.
Legal Separation vs. Divorce
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.
Options for Troubled Marriages
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
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
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