Overview of Legal Separation in Georgia
Separation in Georgia may sound like a process that everyone is familiar with and so there is no need for any detailed information about the process. These separations occur frequently and you have likely heard many stories about these separations. However, there are ways that separation may be different than what you would expect. Many people do not know that Georgia recognizes the concept of a legal separation, and that this process is very different from divorce. A legal separation requires you to file a separate legal action, however infrequently, which means that it is very different from a divorce case. This does affect the effect of the judgment which is entered by the state of Georgia. It also does not invalidate your marital status so you must absolutely keep the agreement that you enter into with your spouse before you decide to remarry.
A "legal separation" in Georgia means a court approved separation that does not end the marriage. Legally, if you are separated, you are still married to your spouse . You may or may not be living together because you are still legally married but you and your spouse have agreed to live your individual lives and maintain separate households. The law in Georgia allows spouses to separate and live apart for a variety of reasons. These reasons may be financial or emotional but it does not matter what the reason is because the law in Georgia permits both physical and legal separation. A legal separation requires one spouse to be legally bound to the other in spite of the fact that the two have agreed to live apart as if they are no longer in a relationship.
Legal separation may include provisions for custody, visitation and support carries divorce will as well but a legal separation will not end the marriage. This distinction is the most important when reviewing the process because a separation does not terminate the marriage and will not permit a party to freely marry another person without being charged with bigamy.
Qualifying for Legal Separation
In Georgia, filing for legal separation requires meeting certain eligibility criteria. It is important to understand that the State Georgia does not recognize a legal separation as its own "status" under Georgia law. Instead, a legal separation in Georgia can best be understood as a situation where, while not legally divorced and with no legal "status" of being separated, one or both spouses decide that they need to live separate and apart from the other spouse. This decision is sometimes made after a spouse moves out of the couple’s marital home, and sometimes it is done on an amicable basis, in which a spouse will move out of the home, and the other spouse will remain (or vice versa). The code sections outlining this can be viewed in O.C.G.A. sections 19-5-1 through 19-5-25, inclusive.
The State of Georgia imposes residency requirements for those wishing to file for a legal separation. These requirements stipulate that the filing spouse must not only be a resident of what is commonly known as the "State of Georgia," but also that the filing spouse is, effectively, a resident of the county of Georgia in which he or she files for legal separation. This residency requirement is found in O.C.G.A. section 19-5-2, which requires the Plaintiff to live in Georgia for at least 6 months prior to filing and that a divorce case be pending before the Court for 30 days before bringing the action for legal separation.
Next, the eligibility requirement to file for legal separation in Georgia also requires that the filing spouse file a petition seeking the court’s approval to legally separate from the other spouse. That petition must request an award of temporary relief from the court (meaning an "Emergency Hearing" must also be requested to hear the case). This typically includes orders for temporary alimony (support), division of the marital assets and debts between the parties, custody of the children, visitation of the children, and payment or awards of attorneys’ fees to the requesting spouse. Although the statute outlines the grounds for pragmatic relief, they do not define an actual—existing—legal status of being "legally separated," nor do they define what qualifies as "separation." Interestingly, "living separate and apart" does not mean strictly living in different geographical locations. It can mean living in the same household physically, but one spouse living in the basement while the other lives in the upstairs portion of the marital home, or even having two spouses live at two homes on the same street during the time of the separation.
The statute also lays out the grounds for obtaining a legal separation. The grounds, in summary, include: The term separation—or living "separate and apart"—is not defined in statute. In Bennett v. Bennett, 256 Ga.App. 551(1), 568 S.E.2d 483 (2002), the Court of Appeals of Georgia addressed the question of whether a spouse’s act of moving out of the marital home was sufficient to equate to a separation. The Court of Appeals found that even if the parties had been living apart for more than six months before de facto "separated," and even if the wife intended to become legally separated if the husband had agreed, the wife did not live separate and apart within the meaning of the statute unless her husband abandoned her. The Court of Appeals found that the one spouse must move from the marital home without the consent of the other spouse, and "flee" the other spouse’s presence, such that a "firewall" (so to speak) must exist between the spouses. The spouse seeking to recover alimony was effective "abandoned" by the other spouse, but the parties did not live with hindsight of what we all now know to be a legal separation, and thus denied the request for alimony.
Filing for Legal Separation
Filing for Legal Separation in Georgia is similar to filing for divorce. The only difference comes at the beginning of the process before you and your spouse have property and debt divided and perhaps some other issues, such as children’s school, child support or child visitation. A Petition for Divorce is very similar to a Petition for Separation, so you may see some overlap in the explanation. You and your spouse must file a petition in court to begin the process of separation. Jurisdiction must be found by the appropriate state courts. Georgia courts have jurisdiction over legal separation, adult adoptions (i.e., stepparents desiring to adopt a stepchild after the other biological parent’s rights have been terminated), name changes and legitimation (i.e., when an illegitimate child’s father wishes to establish paternity). In your Petition for Divorce, you or your spouse book an appointment and file it in the court clerk’s office in your county. Your filing fee must be paid at that time. The cost of filing the paperwork is about $200 to $300. After filing the petition, you will have to serve your spouse with a copy of the papers. This can be done temporarily via mail pending "formal service" by the Sheriff’s Department. If you and your spouse have agreed on everything, an "agreement to use alternative service" can be created. The next step is to complete and submit a filing fee waiver if you’re unable to pay the filing fees, go to mediation — if necessary (see a family law mediator for help), attend a settlement conference (if available) to work out details with your spouse, and wait for the judge to hear your case and hopefully grant the order. Here, the judge decides whether you must go to trial to settle anything. Keep in mind that if you believe you and your spouse can agree on everything regarding assets, debts, children, etc., in Georgia there is an uncontested divorce you can use. However, this is not usually the case. It is important to note that if you are married for less than 30 years, there is no alimony in Georgia. You can get a divorce but you have to be married 30 years for a judge to obtain unearned income (this is not a guarantee by the way). You can request the court to additional fee waiver on grounds of extreme hardship to the petitioner and equitable considerations, Legally separating in the State of Georgia is possible. It may happen faster to get a legal separation than an uncontested divorce.
Legal Separation Advantages and Disadvantages
A legal separation allows spouses to live apart without terminating their marriage. However, it is not completely without drawbacks and limitations.
Pros and cons: In Georgia, the legal benefits of a separation are few, as a separation agreement will not be binding on a judge in any future action for divorce. Also, a separation does not change the spouses’ last names. Separations are not particularly common among Georgia residents expecting a divorce. Something that does motivate the separation approach is when one spouse wishes to remain married, primarily for religious or cultural reasons. One of the key advantages to separation is that the court may issue provisional orders for spousal support, child custody and support, and property division. These orders are not final, so they are subject to change in a subsequent divorce proceeding. If both parties come to an agreement on all issues, they do have the option to submit a consent agreement to the court for approval. The agreement has a similar effect as a consent agreement filed during a divorce. If spouses can agree on settlement terms for their separation agreement, they are likely able to conclude the terms of their divorce settlement as well. Another benefit is that spouses may reconcile during the separation period. Even if they’re unsure about how they feel about the marriage, a separation is preferable to filing for divorce at that point, as it allows for a more thorough assessment of the relationship and the time necessary for couples’ counseling. Many couples use separation for practical reasons instead of marriage dissolution. Couples who need to avoid the economic challenges of separate households right away may have the time to establish a separate residence later or have other options available such as shared ownership of a house. In many cases, separation can provide some stability for children until a divorce is completed.
Legal Aspects and Costs of Legal Separation
A legal separation allows couples to legally separate while remaining married. It also establishes arrangements for alimony, child support, child custody, and property division without going through an official divorce. Alimony is the money paid from one spouse to the other following separation or divorce. Some factors that help determine the amount of spousal support include: Many of these factors also apply to granting and denying spousal support in divorce proceedings. Either spouse may request a termination of alimony based on a number of reasons, such as: In Georgia, child support is paid by the non-custodial parent and can be awarded in a legal separation order. If the spouses cannot agree on the amount of child support, the Georgia Child Support Guidelines will be used. This guideline determines the amount of weekly child support needed according to: Much like a divorce decree, a legal separation order covers the terms of child custody and child support. Determining and agreeing on custody can be difficult, especially if the parties are seeking sole or joint physical custody . In Georgia, an attorney may file a request for child custody visitation rights and modifications for alimony and child support. In determining child custody in legal separation agreements, the courts look at: When establishing a legal separation order, spouses will need to divide marital property. This applies to jointly owned assets that were acquired during the marriage. Assets may include financial accounts, real estate, or personal property. At the time of legal separation, the court divides certain property into one of three categories: Separate property, also known as premarital property, is property that the spouse owned before the date of marriage. If the asset was inherited or gifted to one spouse, it is also considered separate property. Dividing separate property can become tricky if it has been commingled with marital property. For example, if the house was gifted to one spouse, but the other spouse made the mortgage payments, half of the equity may belong to the non-owning spouse. A legal separation provides financial security and assistance from the court in dealing with sensitive issues that affect the welfare of the children or the family.
Assistance of a Family Law Attorney
The role of a family law attorney in Georgia is not to just represent a party in court when litigation erupts, but to assist that client with protecting their rights from the onset of the case. In the case of married parties contemplating legal separation, the attorney’s role begins before the formal service of process (i.e. the filing of a complaint) and can include drafting the written property settlement agreement in order to avoid unnecessary filings, creating enforceable agreements to provide for child support or spousal support during the pendency of the separation, and even assisting in the naming of a third-party to make important decisions regarding minor children of the marriage while the parties are separated and there is not an enforceable custodial agreement in place.
Even when the parties have an enforceable court order granting certain rights, physical custody of a minor child, the right of visitation and other important aspects regarding a child, you may still need a family attorney if the other parent is violating the agreement or order. Determining which avenue to pursue (i.e. contempt, modification due to a change in circumstances, etc.) is important to getting the relief you are entitled to. In addition, there are various avenues for support to provide needed financial support until a final agreement or award is in place. Determining what is appropriate in your case is an area where a family law attorney can guide you, and assist you in better understanding the law and your options.
Having a seasoned professional drafting your property settlement agreement, calculating the necessary guidelines for a child support award, and helping the parties settle the case out of court helps save you both time and money. Particularly, it is easier to negotiate a resolution to your pending divorce or legal separation when both parties understand what will happen if they do not agree, particularly regarding child support awards, potential alimony or equitable division of marital property. Having an attorney you trust help you through this process can save both you and your spouse significant money in the long run.
Assistance and Resources
Multiple organizations offer resources and support services for those facing a legal separation in Georgia. These organizations include:
Georgia Legal Services Program (GLSP). GLSP is a private, non-profit organization that offers free legal assistance in civil matters to eligible low-income Georgians. In addition to providing lawyers to assist in legal separation and divorce filings, the organization also refers clients to low-cost legal service providers in surrounding counties. Division of Aging Services . The Georgia Division of Aging Services provides clients and their families with information and support in finding the right care providers. Clients can use this database to locate elder abuse services, family caregiver support, long-term care ombudsman services and respite care in their area. Mediators Beyond Borders. A network of professionals committed to supporting mediation, Mediators Beyond Borders is a great way to connect with mediation services in your area. Search this national directory for staff, boards and mediators in Georgia.