The Meaning of Legal Separation
Legal separation in Georgia is an alternative to divorce that can help couples that want to live separately but do not wish to go through the divorce process. Spouses who become legally separated have themselves established separate lives without ending their marriage. This arrangement can be ideal for partners who want to find out if they truly want a divorce or not. It gives each party the freedom to live their own lives, but it also allows them to benefit from the legal protections of Georgia law. Although legal separation is not available in all states, Georgia recognizes the arrangement. Georgia grounds for separation, as well as Georgia grounds for divorce, include cruelty, adultery, abandonment and others.
Legal separation is not a divorce. In a divorce, all assets are divided by courts, and there are no further legal obligations between partners after the disbanding is complete. During a legal separation , all benefits remain in place. Health insurance from one spouse carries over to the other, and all court-ordered obligations remain in place. Legal separation allows couples to remain married but live separate lives. If partners then decide they want a divorce, the process is expedited and easier than a legal separation, since almost all the paperwork remains in place.
When couples choose to be legally separated in Georgia, they must file a separation agreement. This requires full disclosure of assets and debts and details which spouse gets what. Courts in Georgia still require a fair division of property even in separation agreements. These agreements name a primary custodial parent for children and how long non-custodial parents get to see their children. Courts issue temporary child support and alimony awards.
Common Reasons for Legal Separation
Some of the most common reasons why people in Georgia choose to get legally separated rather than obtaining a divorce are the following:
1. Financial Benefits
In some circumstances like military and social security benefits, legal separation can offer a financial advantage to you. Sometimes, divorcing could cause you to lose certain benefits and you need to consider whether remaining married is more advantageous to you than divorcing.
2. Religious or Moral Beliefs
Certain religious cultures don’t allow for divorce and some people would rather live in a separated state than go against their religion. For example, Orthodox Christianity has some denominations and sects that do not allow for divorce and many individuals in those sects rather stay legally separated instead of getting a divorce.
3. Personal Choice
Some individuals prefer to remain married but don’t want to live in the same house with their spouse. You could be a candidate for legal separation if you both agree and don’t want to end the marriage. This would also apply if children are involved and they particularly are in favor of the parents not getting divorced.
How to File for Legal Separation in Georgia
1. Prepare the Required Forms:
In order to file for legal separation in Georgia, you must complete and file a Petition for Separate Maintenance. This form is usually available at family law courts or law libraries within the state. Provide as much information as possible about both parties, including full names, addresses, dates of birth, and the date of marriage.
2. File the Petition:
After completing the Petition for Separate Maintenance, submit your petition to the Clerk of Superior Court. This goes hand in hand with a $200 filing fee. Notice that "separate maintenance" cases may involve issues like alimony, child custody, visitation and child support.
3. Serve Your Spouse:
Service must occur at least thirty days before the hearing; failure to do so could result in dismissal of the case. You must serve your spouse in one of the following ways:
4. Wait for Response:
Once served, the respondent has 30 days to file an Answer form. The Answer form allows a sample response to the petition, including any opposition to its claims or requested conditions of legal separation.
5. Attend Hearing:
If the respondent does not file an Answer during the allotted time, the case will proceed to hearing. Otherwise, a hearing will be held to determine the terms of the legal separation. Failure to appear at this hearing could result in a default judgment against you.
Enforceability of Separation Agreements
Special note: Section 19-6-9 of the Official Code of Georgia Annotated defines "separate maintenance" as an action that can be brought "to protect and compel rights, relief, and remedies between an innocent spouse and the other spouse, through a decree of separate maintenance and in equity for alimony and for the custody of minor children during the pendency of an action for divorce." For the purposes of a legal separation, the custodial parent could file anything that would legally separate them from the other spouse. However, for the purposes of a divorce, it is critical in the pleadings and negotiation of the agreement to be aware of how the custody arrangement will impact the division of assets vested in the spouses. It could be an agreement reached between a husband and wife where they mimic what a final order would require. In other words, it is not a court order, but a contract between the husband and the wife that is enforceable in the same manner as a court order would be. The important thing is that such contracts are binding on the parties unless and until a court modifies the terms due to either party’s substantial change in circumstances. Agreements affect "the substantive rights of the parties involved." They can be implemented to resolve issues like child custody, asset division, spousal maintenance payments, and more. If parties cannot agree on the terms of a separation agreement, they can decide to take their agreement to a judge. A judge can then enforce any terms of the original agreement within a court order or modify, add to, or delete parts of the agreement from a court order.
Impact on Children’s Custody and Support
When separating from a spouse in Georgia, you may have to disentangle your lives from multiple angles. Children complicate these separations, in that you not only have a legal relationship with your spouse but a legal one with your children as well. So, when you’re legally separating, you may have to contend with how your separation and/or divorce will impact child custody and child support.
In cases where parents have joint custody of children, generally speaking, legal separation doesn’t alter those custody arrangements much. The same can be said of child support, provided that the elements of that support remain even, meaning that the custodial parent is unable to maintain adequate housing and financial conditions for the children. If necessary, however, legal separation may alter those obligations, largely because legal separation serves to divide couples’ assets. Child support is in some ways an asset of the couples’ relationship, and as such, may be affected. Courts often look at child support during legal separation to ensure that neither party feels disempowered by having the primary responsibility of raising children.
Georgia law handles child custody and child support in a very particular way. Most importantly , child custody arrangements are dynamic and are based on the circumstances of the family at the time of the ruling. Practically, this means that the judges keep open the ability to make amendments to that custody arrangement if the circumstances of the family change. If two parents undergo a legal separation and have joint custody, for instance, either party can choose to enact a change in the custody agreement later if that arrangement ceases to work.
Courts typically favor arrangements where parents share equal custody over a period of time, although in recent years there has been some evidence to suggest that courts are moving increasingly toward arrangements that favor single-parent households. The important matter to note for separation purposes is that the parents’ legal relationship scores higher than the couple’s relationship.
As for child support, Georgia attempts to apply logic to the amount of child support each party pays. Calculating child support agreements takes into account parents’ incomes and the numbers of children being raised. While child support agreements are not set in stone—and can always be amended if anything changes in the future—it is important to keep these agreements realistic when creating them.
Limitations and Challenges of Legal Separation
Lack of finality: In Georgia, legal separation does not lead to a dissolution of marriage. You are still legally married after you have your separation agreement approved by the court. All of the terms that you agree to in your separation agreement are open to change after you have been separated for some time (except for the terms in your agreement related to property division, which will be incorporated into a final divorce settlement or divorce decree).
Difficulty in enforcing agreement: Because parties are not divorced, in Georgia, a party in a legal separation does not have as much leverage as he/she would have if he/she was divorced or had a temporary order signed by a judge. If one of the parties isn’t complying with the terms of the legal separation agreement, the terms of the agreement will probably need to be incorporated into an order signed by a judge in order to be enforced by contempt.
Difficulty in changing agreement: Similarly, the parties do not have as much leverage to renegotiate the terms of the separation agreement in case one of the parties wants to change it.
Separation Versus Divorce in Georgia
While legal separation and divorce accomplish the same goal of ending a marriage, there are differences between the two. The end result is the same: you are released from obligations to your spouse. But it is important to realize that the two processes are distinctly different, especially at the time of filing and during the period before a divorce is final.
Under Georgia law, there is no such thing as legal separation. While your marriage can be functionally and even legally separated in terms of property and other rights, the key difference is that you remain married to your spouse. The separation agreement does not end the marriage.
When you file for divorce, or one is filed against you, your status and the status of your spouse is changed. You are legally divorced. Since you were functionally separated prior to filing, you may not feel that much changes in your everyday life. But there are of course things that will change. For instance: In Georgia, there is a process for judicial separation. Even though it has similar outcomes to going through a divorce, the judicial separation is not a legal separation. The court date and the separation are not the same. The key difference is that a separation agreement does not need to legally end a marriage.
Many see a legal separation as an opportunity to try to end things while leaving the door open for a future reconciliation – after all, you are only separated. So if you are looking for a temporary status, an agreement can make your marital status status quo until you reconsiders its finality.
In Georgia, a separate maintenance action may be filed for a judicial separation, as could appropriate action for alimony or division of property, domestic violence protection, and any other issue that could arise in a divorce.
The Need for Separate Legal Advice
The importance of professional advice and counsel should not be underestimated when considering legal separation in Georgia. A consultation with a skilled family law attorney can clarify what your rights and obligations are during a legal separation as well as after the divorce or annulment has been filed. In addition , a competent attorney can also explain to you how long a trial separation may last prior to your filing for divorce if that is the route you decide to take. There are also other important factors that only a family law attorney with real courtroom experience can explain to you. For example, what if there is no separation agreement prior to the divorce being filed and the parties are unable to agree on temporary parenting and support issues and are living in Georgia? Then what? Let’s bring in our legal separation lawyers and Atlanta divorce attorneys to bare the answers to your questions.