Most states offer legal separation as an alternative to divorce. Technically, in Georgia, there is no specific statute devoted to “legal separation.” However, there is something very similar to legal separation in Georgia, known as “separate maintenance.”
What is legal separation?
Legal separation is a way to end a marriage other than an annulment and divorce. After a legal separation, the parties are still married at the end. In other words, a legal separation is a court order that instructs the rights and responsibilities of a married couple while they are living separately. Legal separations are rare.
What is the difference between legal separation and divorce?
Legal separation does not end a marriage, whereas divorce does end a marriage. Legal separation determines the same issues as a divorce does (alimony, custody, etc.), but at the end you are still married. At the end of a legal separation proceeding, you may not re-marry. On the other hand, at the end of a divorce, you may re-marry.
How does separate maintenance (i.e. legal separation) work in Georgia?
Georgia does not have an actual statute for legal separation. However, married couples may pursue separate maintenance in Georgia, which is very similar to a legal separation. Separate maintenance addresses nearly all of the same issues addressed in a divorce, except without the finality of ending the marriage.
In Georgia, the paperwork for separate maintenance is different depending on whether you have children of the marriage or not.
Just like in a divorce, the plaintiff (the person filing for divorce) must plead grounds for the legal separation. The grounds for separation are as follows: (1) the separation between the couple was agreed upon (this is parallel to “no fault” grounds in a divorce); and (2) the separation between the couple was based on misconduct on part of the defendant spouse (i.e. the person not filing). The type of misconduct allowed includes adultery, domestic violence, abandonment, excessive drug use, etc.
Additionally, actions for separate maintenance in Georgia address the following issues:
- Spousal support (i.e. alimony/maintenance)
- Marital property
- Marital debts
- Custody of children
- Visitation of children
- Child support
- Temporary restraining orders (not applicable in all cases)
What is the effect of legal separation/separate maintenance?
The effect of a legal separation is not that the marriage is ended. Instead, the individuals are merely separated, but still legally married. Legal separation only determines the issues surrounding the marriage (e.g. custody, alimony, etc.). Accordingly, the couple must follow the court orders laid out regarding property, spousal support, child custody, and more.
What about alimony and property division in a legal separation/separate maintenance?
Alimony and property division are treated the same as in a divorce. Both issues may be determined by the judge in a legal separation, just like a divorce. In addition to alimony and property division, the court may also make decisions regarding debts, custody of children, visitation of children, and child support.
Why file for separate maintenance/legal separation over divorce?
Getting a legal separation over a divorce is a personal decision. Some people may be lead to get a legal separation instead of a divorce for religious reasons. Some may choose to get a legal separation to avoid the social stigma of divorce. Others may wish to separate, but not actually end the marriage. Or legal separation may be chosen to allow the other spouse insurance or pension benefits that they would have lost in the divorce. Whatever the reason is, it is completely a personal choice.
What are the benefits of legal separation/separate maintenance?
The most glaring benefit of legal separation is allowing a couple to work through personal or financial issues affecting the marriage. The court typically determines spousal support (i.e. alimony/maintenance), child custody, child visitation, and property division. Each state is different. For example, some states may not allow for property division in a legal separation.
Another important benefit of legal separation is that each spouse can still reap the benefits of insurance and pension benefits from the other spouse. This may be another reason to choose legal separation over divorce or annulment.
Should I hire a lawyer for a legal separation/separate maintenance?
While it is not a requirement to hire a lawyer for a legal separation, divorce, or annulment, it is highly recommended for all three. To get the most desirable outcome for your case, hiring a lawyer is crucial. Without a lawyer, you must fill out and file all of the correct paperwork, appear in front of a judge on behalf of yourself, and correspond with the opposing party’s lawyer. Additionally, most people are not familiar with Georgia family law, so unrepresented parties may oversee certain rights that they are entitled to.