Is Legal Separation Recognized in Georgia?
In Georgia, there is no specific legal status known as "legal separation." According to the Georgia Divorce Code, parties can either be married or they can be divorced. It states: "A marriage may be dissolved only between a husband and a wife or between persons of the same sex who have submitted to a marriage ceremony under the laws of this state. A marriage may not be dissolved between any other persons." Consequently, living apart is not a legal status recognized by the State of Georgia.
As discussed above, in Georgia the only two legal statuses available for parties are being married or being divorced.
However, while they may be living separately and apart, the spouses may still file a Separation Agreement outlining the terms of their separation, which has the effect of a binding contract upon them.
Of course, one of the most popular problems with filing a "separation agreement" is that parties will often confuse it with a divorce. Perhaps the parties filed it themselves out of ignorance and thought it had the same effect as a divorce when it really didn’t. The problem with that is it can sometimes backfire on the person who actually filed it.
For example if one person files a separation agreement with the Court instead of a divorce action and then years later the Doctor that they have since married decides to relocate to another State, Georgia’s long-arm statute can sometimes prevent them from relocating to other states to join their new spouse. However, had the spouse who initially filed the separation agreement actually filed for divorce instead of separation, they would have been free to join his/her spouse in a reciprocal state without any problems.
The fine line between separation and divorce can be confusing to parties because while they may begin their journey seeking to separate , if too much time passes without them actually filing a divorce, the Court’s opinion may change and they may choose to become "reconciled" which can result in them being stuck together as husband and wife again when they really didn’t want to be.
Furthermore, if the parties do reconcile, and then decide to file for divorce, Georgia law requires that they live together and have sexual relations for a period of 30 days before the divorce action is final. However, once the divorce action is filed, they cannot live together as husband and wife during that time.
In other words, the period of reconciliation is critical and can often times be the worst thing that ever happened to some people because after reconciling, some people find a new lease on life and do not want "out" anymore and the other spouse has his/her own plans.
For example: Husband and wife filed for separation several years ago. During the period prior to the consent order/conclusion of the action, Wife was not aware that Husband was having an affair. After the consent of the parties was filed, Husband started dating another woman. Neither one actually thought divorce was in the cards. When the new relationship blossomed into something more than casual dating, both parties decided to file for divorce and do so in a non-contentious manner. However, during the pendency of the action, they got back together again and were intimate with one another.
Once the divorce actions were concluded, neither party wanted to change their minds. However, since they reconciled, they had a thirty-day waiting period.
Needless to say, while now both parties are able to get married again, the law imposed a hardship on them to wait the thirty days and then marry.
Separation in Georgia is often temporary. While it is a status, it is rarely used. Most people who live apart from one another file for divorce.
Options Besides a Legal Separation in Georgia
Couples who want to separate in Georgia without filing for divorce have some alternatives to legal separation. One option is obtaining a separate maintenance order, which allows the spouses to live apart under court supervision but does not legally end the marriage.
This alternative to divorce is often used when the spouses can no longer cohabitate peacefully and a divorce would be too expensive or would take too long. Separate maintenance orders only serve to divide property without legally ending the marriage. However, many courts treat them like a divorce in terms of property division.
Obtaining a separate maintenance order is typically less complicated than getting a divorce. As with a divorce, one spouse files a petition for separate maintenance in the court where the spouses lived together, even if only one spouse still lives in Georgia.
The spouse (the petitioner) must state under oath the reasons for separate maintenance. Reasons for separate maintenance include abandonment by one spouse or that the couple is living apart due to a spouse being in jail.
The petitioner also states any immediate needs for support, such as medical needs. The petitioner can seek spousal or child support. When child support is necessary, the petitioner must submit the child support worksheet along with the petition.
The petitioner also includes any needs for temporary relief, such as temporary custody, temporary restraining orders and any need for equitable division of property.
When the petition is filed, a hearing is scheduled. At the hearing, a judge divides the spousal support, child support and family property. Child custody, visitation and any protective orders are also determined.
After the temporary relief hearing, a final hearing is scheduled. After a separate maintenance order is issued, it can be altered later for circumstances such as the parties remarrying, the marital status of the respondent changes, the petitioner and the respondent become financially equal and the petitioner fails to perform comparably in previous employment.
Pros and Cons of the Different Approaches to Separation
Weighing the Benefits and Drawbacks of Various Options
There are a great many practical and legal issues that must be dealt with following a separation and/or divorce. Before taking any action, it is advisable to consult an attorney. For instance, when it comes to separation, you may want to consider these three options:
Each of the options outlined below has its own benefits and drawbacks, so you will want to review them carefully with your divorce attorney until you are comfortable with your decision.
Consent Agreement With Child Custody and Child Support
If you and your spouse are able to agree on the terms of your separation, as well as how custody and child support matters are to be handled, you may be able to prepare a consent agreement that sets out all of the terms of the separation. The resulting agreement does not have to be filed with the court. However, it is still a legally binding document. If you later choose to divorce, you will need to file a motion to convert the consent agreement into a temporary order. The advantages of this option are that you have ultimate control over the terms of the agreement, it is relatively quick to prepare, and no litigation is required.
Consent Agreement With Temporary Court Order
An alternative to preparing a consent agreement is to have your attorney prepare a petition for temporary relief. If the two of you are able to agree on the terms of the temporary relief, the petition can be converted into a consent agreement, which need not be filed with the court. The benefit of using a temporary order is so that you and your spouse have the opportunity to avoid any possible litigation. Once the temporary relief is put in place, if it appears that it is not in the best interests of either party, the parties have the option of modifying, or possibly even cancelling, the order.
Judicial Separation
A judicial separation is the most formal separation agreement. You will each need to hire a divorce attorney who will represent your rights in court. The terms of the separation will be set out in a written application and submitted to the presiding judge for approval. Once the separation agreement is approved, it will be subject to judicial sanction. Although this option is clearly the most costly of all, it provides the most protection should one spouse try to violate the terms of the agreement. It is also important to bear in mind that judicial separations can be time consuming. If the matter comes before a judge on an uncontested basis, the process can take anywhere from 30 to 90 other days. If the parties go to court to resolve any pending issues, the time frame can be anywhere from six months to a year. There are some divorcing couples that find judicial separation to be unnecessary. Depending on the status of their relationship, it is sometimes best to work with an attorney for the purpose of drafting a temporary agreement and allow the parties to make adjustments if circumstances demand them.
Process for Separating in Georgia
The procedural steps to pursue separation-like arrangements in Georgia generally involve a commitment to separating the parties, filing a petition with the appropriate court, and following through with any necessary legal processes to address child custody, property division, and other issues.
The first step in pursuing a legal separation is often to file a petition with the Superior or Family Court in the jurisdiction where either spouse resides. This petition typically outlines the dating history with the spouse and the efforts you have undertaken to reside separately from your spouse without filing for divorce.
Once the petition is filed, the court will schedule a hearing date within 30 days. At the hearing, the individual seeking the separation must demonstrate to the court why a separation is in the best interest of both parties. If the court is satisfied , it will grant a temporary separation until a permanent agreement can be reached.
It is also important for both parties to gather any necessary documentation that may be needed as part of the separation process. This may include financial records, tax returns, medical records, and any other relevant information that can help support the case for a legal separation.
After the separation is granted, the court may appoint a mediator to help the parties reach an agreement on any unresolved issues relating to child custody, child support, alimony, property division, and other concerns. If a resolution is not possible, the case may need to be litigated in the Family or Superior Court.
It is always best to seek the advice and counsel of a qualified attorney when pursuing a legal separation in Georgia. This will ensure that all legal requirements are met and the rights and interests of the parties are adequately protected.
Effects on Custody and Child Support
When a couple chooses to legally separate, the question of child custody arises. However, as legal separation is not a legally recognized status in itself in Georgia, child custody is typically addressed with the divorce action correction. If one or both parties to a legal separation choose to file for divorce, the court may involve itself in the matters of child custody, as well as issues of child support. When this is the case, the outcome will generally resemble what would have occurred were the couple to divorce rather than separate. When children are involved, one spouse may petition for sole or joint legal and physical custody, and the arrangement arrived at through mediation or other alternately dispute resolution means may be adopted by the court. If the parents have negotiated a separation agreement that includes terms for visitation, the court can choose to adopt these terms without needing to change them. Of course, if the parents were divorced, the same terms could have been negotiated and agreed to, so in most ways, a legal separation can affect child custody and support no more than a divorce would in Georgia.
Why Legal Guidance May Be Necessary
When a couple decides to separate in Georgia, or that they are heading toward a divorce, it is important that one or both parties seek legal advice. While the marital home may be the single largest asset between the couple, there are innumerable issues that surround the concept of "asset." These will include items in non-marital trusts, use or distribution of marital trusts, division of retirement accounts, hours billed for professional practices, on top of all of the usual groupings of real property, vehicles, credit cards, bank accounts, etc.
There are also issues dealing with the support of any children that have been born of the marriage. Georgia, as many other states, has a complex statutory scheme that addresses when and how child support will be paid. Furthermore, other matters such as medical insurance and education costs must be evaluated when it comes to either child support or alimony.
Finally, one of the more difficult questions to address is the matter of a time frame. Legally in Georgia, a "divorce" does not even exist until a spouse is willing to sign off on a settlement or a judge makes a decision. However, if you tell people that you are separated, this period of no documents being signed is not truly separation . The reason this may be important is that many people choose to separate and have all of the same consequences of divorce, without the legal background. In other words, many people choose to live apart and each pay their own bills, but will not file for divorce until the issue arrives and it is time to move forward. This is their choice, but there are far reaching legal implications that come with putting your hands in your pockets and waiting for a judge to make a ruling.
An experienced divorce lawyer should be able to advise you if the separation will be a similar result to divorce. In these cases, it might only be necessary to see a lawyer once every six months just to check that nothing major has changed. Of course, if a major issue arises such as violence, or a disposition of an asset a lawyer should be contacted immediately. No two cases are the same, but in general over the course of a relationship a couple will have many things in common. It is those things that need to be divided. Sometimes this occurs with only an email or phone call to make sure that things are still on course. Other times a lawyer will need to be involved in order to preserve the rights of either party.