Divorce and Legal Separation in Georgia

Learn about legal separation in Georgia and how it differs from divorce.

What is the difference between a separation and a divorce in Georgia—and what are separated spouses' rights? This article provides answers to these and other questions about divorce and separation in Georgia.

What Is Traditional Divorce?

A traditional divorce is exactly what you know it to be—a legal remedy for permanently terminating a marriage. In Georgia, spouses can request a fault-based or no-fault based divorce. Fault divorce means that one spouse is accusing the other of misconduct that caused the divorce. Common fault-based reasons include adultery, habitual intoxication, and cruel treatment. (Ga. Code Ann. § 19-5-3 (1-12).) Fault-based divorce is expensive and often requires the spouses to hire attorneys, present evidence, and spend significant time in court.

In addition to fault divorce, Georgia (along with every other state) also offers a no-fault divorce, which is where you ask the court for a divorce due to an irretrievable breakdown in the marriage—meaning, neither spouse is responsible for the breakup. (Ga. Code Ann. § 19-5-3 (13).) No-fault divorce is much less involved than a fault divorce, because you don't have the added burden of proving misconduct that lead to the break up. Both fault and no-fault divorces end when a judge issues a final ruling dissolving the marriage and addressing unresolved issues of child custody, child support, spousal support, and property division issues.

Do My Spouse and I Have to Separate Before We Can Divorce?

Divorcing spouses must meet several state requirements before a court can issue a divorce. First, at least one spouse must reside in the state for at least 6 months before filing the divorce petition. (Ga. Code Ann. § 19-5-2.) Before the court can act on your divorce case, the filing spouse must deliver the legal documents to the other spouse, which the law calls "service of process." You can hire a professional process server, a local law enforcement agency, or ask a family friend to hand-deliver the legal documents to your spouse.

In some states, spouses who want a no-fault divorce must live apart (separate) for a period of time. In Georgia, however, there is no legal requirement that spouses live separately before they can get a divorce. After filing your documents and providing a copy to your spouse, Georgia law requires the court to wait a minimum of 30 days before scheduling a final divorce hearing.

This "cooling off" period is an excellent time for you and your spouse to resolve any divorce-related issues, like child custody and support. If you and your spouse agree, you can put your terms in a divorce settlement agreement and present it to the judge at your final hearing. If you can't agree, the judge will schedule a time for a divorce trial and will decide the issues for you.

What Is Legal Separation?

A legal separation happens when a couple decides to live separately and apart without formally ending their marriage through divorce. Although Georgia law doesn't recognize "legal separation," it does allow couples a divorce-alternative called separate maintenance. Separate maintenance is like traditional divorce in that it permits the couple (or the judge) to resolve custody, child support, and alimony issues. However, at the end of the separate maintenance process, the spouses live separate lives but remain legally married until one or both spouses request a formal divorce from the court. (Ga. Code Ann. § 19-6-4 (a).)

A significant difference between traditional divorce and separate maintenance is that the law prohibits a judge from dividing or awarding 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. (Stokes v. Stokes, 246 Ga. 765.)

To qualify for separate maintenance, you must demonstrate all of the following:

  • you and your spouse are legally married
  • you and your spouse are living separately (no cohabitation), and
  • neither spouse filed for divorce. (Ga. Code Ann. § 19-6-10.)

What Is a Separation Agreement?

If you and your spouse decide that you'd like to separate instead of divorce, it's a good idea to write the terms of your separation into a document called a separation agreement. This document requires both spouses to work together to decide how to allocate custody and visitation with minor children, whether either spouse will pay child support (and how much), and whether spousal support is appropriate. A separation agreement should also include the terms by which both spouses will share bank accounts, marital property (like a marital home), vehicles, and anything else that impacts your family.

One important aspect of every separation agreement is the date of your separation. While you're still legally married, Georgia law still applies to any property that either spouse acquires while separated. To avoid confusion, you should include the date of your separation and the terms for dividing any post-separation property or debt.

Why Choose Separate Maintenance Instead of Divorce?

The decision to separate or divorce is extremely personal and varies from family to family. Some couples have reached an impasse in their marriage but aren't ready to take the steps to divorce. If reconciliation is a remote possibility, separate maintenance may be the bridge necessary to avoid a total divorce. Other families request separate maintenance because they practice a religion that prohibits divorce. Although they remain married, the spouses can both have freedom from traditional marriage roles without going against their sincerely held beliefs.

If one spouse is sick and receives medical coverage through the other's employer, traditional divorce will almost certainly terminate health care insurance. If you're staying legally married for health insurance reasons, check with your provider to ensure that separate maintenance doesn't terminate coverage.

Although 30 days doesn't seem like a long time to wait for divorce proceedings to begin, some spouses can't wait and instead opt for the separate maintenance avenue, which the judge can begin within 3 days of both spouses receiving the paperwork. (Ga. Code Ann. § 19-6-10.)

What About Support During the Separation?

A separation agreement can provide you with emotional and financial security during a separation. When you complete the agreement, you will address issues for child support and spousal support. Once you submit it to the court, the judge will sign it, and it will become as effective as a court order.

Suppose you decide that reconciliation isn't possible after the judge finalizes the separate maintenance order. In that case, you can incorporate your settlement agreement into a final divorce decree, which can save a significant amount of time and money since there are no outstanding divorce-related issues.

If you and your spouse separate but can't agree on the terms for support, you can ask the court to determine child support, child custody, visitation, and spousal support. The judge will evaluate your case and issue a final court order.

If you're going through a divorce or considering separate maintenance, contact an experienced family law attorney near you.

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