Defining Separation in Georgia
Legal separation is not a recognized status under Georgia law, meaning that similar to a divorce, the legal relationship between the spouses is severed only by a Court order (an agreed judgment or trial judge order) or by the death of either spouse. In Georgia, you can live apart for 20 years and remain married, whereas if you are divorced, you are unmarried.
Although there is no legal separation in Georgia, there is something called a separation agreement, which is a written contract wherein the husband and wife agree to live separately, and it typically addresses divorce-related issues such as child custody and support, parenting time schedules, visitation, equitable distribution of property, debt, spousal support, and health insurance. A separation agreement should be consistent with the best interest of the children and Georgia law . For child support, this means being in compliance with the Georgia Child Support Guidelines Worksheet and the specific support circumstances that apply to your case. For the distribution of assets and debts of the marriage, it requires the husband and wife disclose their assets and debts in order to achieve a fair and equitable distribution. For parenting time and visitation, it requires rationale on when each parent will have time with the children, discussing holidays, vacations, schooling, work schedules, experiences with the children, and the expectations of each parent while spending time with the children.
A separation agreement is a mutually-agreed upon contract between the husband and wife that is eventually referenced and incorporated into the final judgment for divorce to expedite getting the parties divorced.
How to Get Legally Separated in Georgia
The legal process to gain a legal separation in Georgia can be outlined in six major steps:
1. Preparation of a Separation Agreement
Once the decision has been made to legally separate, the next step is for the parties to enter into a written agreement whereby they agree to live apart and to allocate to each specific property, income, and debts obligations. A sample separation agreement can be found on this website in the Separation Agreements section.
2. Filing of a "Complaint for Divorce"
If the parties have not reached an agreement on the separation – and the recommendation is to reach one as it is in both parties’ best interests – to begin the process to get the legal separation, one of the parties can file divorce paper by filing a "complaint for divorce" that lists the reasons for the divorce and outlines all of the issues to be determined.
3. Filing of a Motion for Temporary Relief
In child custody cases where there is a need for an expedited resolution, it is common to file this motion. Or, if the parties do not agree on the terms of a legal separation, a motion for temporary relief may need to be filed by the plaintiff or defendants. This is assuming there is no separation agreement in place at the time a complaint for divorce is filed by one of the parties. The court will determine who gets to stay in the house, if there is a need for spousal support or child support, and visitation and parenting time until the marital status is determined by the court. Per O.C.G.A. 9-11-7, if there is a pending divorce action, the court has additional jurisdiction to hear issues related to the divorce (such as spousal support, child support, child custody, visitation, parenting time, etc.) pursuant.
4. Service of Process
There are several different ways to accomplish service of a complaint for divorce (or service upon the marriage). The first step is personal service of divorce papers upon the spouse. This is typically accomplished by a private process server. If defendant lives out of state, often service can be accomplished by mailing the necessary documentation and obtaining that person’s acceptance of service. Service can also be accomplished through publication in rare circumstances.
5. The Answer and Counterclaim
After service upon the defendant, he or she has thirty days to respond by filing a separate pleading (called an answer and/or counterclaim).
6. Discovery and Mediation
After the parties have filed their pleadings, the process of discovery can begin to take shape. The parties will exchange information by way of mandatory disclosures, interrogatories, requests for admissions, requests for production of documents, depositions, experts, and custody evaluations (in custody cases). Mediation efforts often take place during this time to help resolve the pending issues. The cases tend to be very factually driven and decisions tend to be made by the parties as opposed to the Third-Party Neutral or the Judge.
Rights and Responsibilities of a Separated Couple
Separation is often the first step couples take down the road toward divorce. In Georgia, when a couple separates, they may choose to file a document known as a "Settlement Agreement and Petition for Separation" before a superior court judge. Satisfied that they’ve been presented sufficient grounds for legal separation, the judge grants a "Decree of Separation." And at that point, the couple is legally separated.
Many of the rights and responsibilities surrounding a legal separation resemble those imposed on a newly divorced spouse. If minor children are involved, the parents may draw up a parenting plan addressing custody issues. The plan must be agreed to by both parents and approved by the court. This document outlines the children’s daily lives, from transportation to where they spend major holidays and what their health care providers can do without seeking the consent of both parents. Georgia does allow parents to share joint custody in a divorce, which carries over into a legal separation.
Alimony is yet another issue that will be on the table during a legal separation. Spouses have an obligation to support each other financially during the marriage, and that obligation does not stop the moment one partner walks out the door. A judge may order the husband to pay alimony to the wife. There is no formula to calculate alimony payments; the amount depends on the income of both parties and "the conduct of the parties." Even though separation is a relatively new process under Georgia law, just like divorce, it can immediately affect child support and how much alimony is paid.
Legal Separation vs Divorce: Pros of Staying Separated
Advantages of Legal Separation Over Divorce in Georgia
There are emotional, practical and legal advantages to pursuing a legal separation rather than a divorce. Potential benefits could include the following:
LEGAL BENEFITS OF A LEGAL SEPARATION:
There are some things you can agree upon as issues that could apply to your future divorce and how you and your family will deal with those issues now.
For instance, you could decide on a temporary Schedule for the Parenting of Your Children. There may be some issues on which you and your spouse cannot agree such as custody, visitation, child support, health care and insurance, and there is mediation available to help you resolve these now.
Again, any agreements made are not final and you don’t have to pursue the case to a final resolution if you do not wish.
It allows you to legally live apart. You can see other people. You may qualify for financial benefits such as Social Security and other benefits. It may help your credit rating. You may have made decisions on debt and division of household goods and real estate.
In Georgia, in order to obtain a divorce, or have the option for alimony, there must be a sufficient waiting period. Your spouse cannot be rewarded by bad behavior. Six months allows for some remorse. There is no waiting period for a legal separation.
The person at fault cannot remarry until the divorce is finalized. Georgia law requires one year separation from the date of the separation, not the date of the filing of a Petition for divorce.
Separation Myths to Dispel
Many people assume that to be legally separated from their spouse, they need to move out of the house. This is not true. In fact, if one spouse moves out and sends the other an email saying, "I want a divorce," some people will go so far as to look at the date of the email as the beginning date of their divorce case. This is not true. What is true is that the parties should have evidence that someone is not living in the marital residence if they are going to claim a pendente lite (temporary) alimony claim. Because it is generally such a mistake to move out of the marital residence, many people try to use the move out date of the pendente lite claim as the date of separation – which is wrong, wrong, wrong.
Many people presume that they are legally separated by just moving out, thinking that their separation date will expedite their divorce, but that is also not true. The waiting time period for a divorce is not shortened by a legal separation. However, having a pendente lite order while the parties are awaiting the absolute divorce is important to establish guidelines for the parties’ future conduct.
Many people leave the marital residence because a spouse "affair" has been discovered. Like the date of separation, some people think that as soon as an affair is disclosed, the date of discovery is the date of separation. Again, this is not true. Although an ongoing affair will be a factor in equitable division, adultery will not be an absolute bar to alimony . Georgia law does not classify adultery as a fault ground for divorce, and adultery is really only relevant to the issue of alimony. Having separate residences can have an ameliorative effect on the amount of alimony, but an affair does not bar alimony in Georgia.
Many people assume that they are legally separated once they reach a verbal agreement with their spouse regarding how their post-separation life is going to be organized. However, this is not true. While the parties may informally agree on how to organize themselves, and even take the additional step of documenting their agreement in writing, they are not legally separated until at least one of the parties brings an action in court for divorce.
Many people assume that they must wait two to three years after the date of separation before they can obtain a divorce; however, this is not true. The law requires that twelve (12) months have elapsed from the date of the marriage until the date of filing for an uncontested divorce. (Contested divorces require six months of distance from the date of the marriage until the date of filing.) However, the "trial" date for an alleged irreconcilable marriage (in which the parties have lived "separate and apart" for at least one year) is typically six months after the filing date. Therefore, the minimum time period between the date of separation and the date of divorce will be eighteen (18) months (and typically longer), but the time from the date of marriage to the date of divorce will remain at twelve (12) months.
If You Would Like to Reconcile Your Marriage
When filing for legal separation, it is not uncommon for the couple to reconcile. Under Georgia law, this is also a possibility thereafter. However, in the eyes of the law, there can be ramifications.
The first step could be a written agreement approved by the judge, outlining the terms of the marriage will be like the previously filed separation agreement. If the couple does subsequently reconcile their marriage, it is important that they notify their attorney of this fact.
If filing for divorce, this couple would likely have to start from scratch. Under Georgia law, an uncontested petition is filed with the court as stipulated in the parties’ separation agreement. If the couple does not wish for a complete divorce and continues to be separated, they may choose to spend more time living separately before reevaluating their relationship.
If the parties reconcile, void the separation agreement and resume their marriage, no additional filing is needed. If they would separate again, then or will need to submit a notice of intent to resume marital relations, which would lead to the conclusion of the separation. If you want to resume marital relations, this will lead to the conclusion of the separation and dismissal of the petition for separation, even if the spouses do not own much property or assets.
If a legal separation agreement was filed and then the parties wish to resume marital relations, a notice of intent to resume marital relations must be filed. The filing must show that the parties resuming their relationship voluntarily and with full knowledge of the consequences. If a legal separation agreement was previously filed, but the parties do not wish to resume marital relations for whatever reason, they can file a notice of intent to resume marital relations to avoid future difficulties if they later file a divorce action.
Meet an Experienced Georgia Family Lawyer
The first step in obtaining a legal separation in Georgia is to consult with a family law attorney who has experience in handling legal separations. A legal separation differs from a divorce in that a divorce officially ends a marriage while a legal separation is more of an interim step prior to a divorce. Consulting with a family law attorney at an early stage allows the attorney to prepare you for what the future may hold and also allows them to make sure that all of the necessary information is obtained before preparing the legal separation agreement.