Legal Separation vs Divorce: Understanding the Pros and Cons and Best Scenarios For Your Situation
If you live in Georgia and are considering ending your marriage, you should know your options. Divorce isn’t as simple as signing a few papers. In fact, Georgia law dictates that you must live in a legal, bona fide state of separation before you can file for divorce. Understanding the different requirements between legal separation vs. divorce will impact your future significantly.
Legal separation is a tricky subject in the state of Georgia. However, it’s the essential first step in the divorce process. Let’s unpack the core differences between divorce and legal separation, the pros and cons of each, and how they look in the eyes of the court. Remember, legal separation doesn’t always lead to divorce. In the end, it depends on what works best for you.
Legal Separation in Georgia
Technically, Georgia doesn’t recognize legal separation. Instead, they look for specific criteria to determine if you’re separated.
To start, you can file a separate maintenance action, a judicial determination to separate spouses and provide support without ending the marriage. But in the end, it all comes down to whether you’re living in a bona fide state of separation as determined by the court.
Now, this doesn’t necessarily mean that you’re living in separate homes. It means you’re no longer engaging in “marital relations.” Such relations include cooperation, company, assistance, and any emotional or sexual activity.
Living in a bona fide state of separation starts a 30-day clock before a judge can finalize and sign off a divorce. But within that time, you are still married in the eyes of Georgia law—there is no such thing as legal separation.
Separation, for now, might be a better option than divorce. For example, both parties may not be on board with getting a divorce and would rather let separation pave the way. Religious beliefs may also forbid divorce.
Healthcare benefits and financial security are the most common reasons for legal separation vs. divorce. Parents may also choose to stay together for their children.
New living arrangements can also put financial stress on the couple. Additional rent or a new mortgage will lead to economic changes and less total income. Conflicts may arise, including over finances, spousal support, and child support agreements.
Divorce in Georgia
Divorce is stressful and emotional. However, knowing your rights, understanding the process, and having a dedicated attorney in your corner will make it easier. After you’ve been in a bonafide state of separation for at least 30 days, you can begin filing the necessary paperwork for divorce.
First off, before filing for divorce in Georgia, you must meet residency requirements. You or your spouse must be a Georgia resident for at least six months before filing. You must also file in the county where your spouse resides (if you don’t meet residency requirements). If you meet the requirements but have since left Georgia, you may be able to file from where you live.
Next, you’ll file the necessary paperwork depending on three crucial factors:
- Do you have minor children?
- Is this a fault or no-fault divorce?
- Is it contested or uncontested?
Divorce always gets messy when there are children—especially minors—involved. If you and your spouse agree, you’ll be responsible for childcare. However, if you can’t, you’ll need to move forward with a custody hearing. A judge may appoint a Guardian Ad Litem, a 3rd-party professional who will investigate and provide a recommendation regarding custody and visitation based on the best interest standard.
No-Fault Divorce Is Still Best
Filing for a no-fault divorce may be in your best interest in Georgia. Doing so cites irreconcilable differences as the reason for marriage dissolution. In other words, you and your spouse aren’t getting along and want to end the marriage without blaming each other.
While there may be more serious problems, not placing blame during legal proceedings increases your chances of the divorce being uncontested. That said, uncontested divorces can still get tricky.
“Uncontested divorce is risky. You can’t get them [your future ex-spouse] to disclose finances due to lack of discovery. They could be hiding assets, and there's no way to enforce that if you don't conduct discovery.” —Dominic Jones, Stearns-Montgomery & Proctor
While divorce isn’t always a smooth process, it does come with benefits. Couples can resolve and move past the issues that harmed their marriage. Filing for a no-fault divorce keeps spouses from “airing dirty laundry,” as divorce settlements—unless sealed—become part of the public record.
Divorce also allows for the equitable division of property and assets. If there are children involved, it’ll end in custody arrangements made with the child’s best interest in mind. Leaning on professional guidance from a family law attorney will ensure these issues—and more—are resolved fairly and agreeably.
Seeking Legal Advice in Georgia
Georgia has precise rules regarding legal separation vs. divorce. Retaining an experienced family lawyer to guide you through the process is best. They can explain the specific rules associated with either option; from there, you can make more informed decisions based on what’s best for you and your family.
An attorney will also draft agreements laying out the rights and responsibilities of each partner regarding children, debts, and assets. An attorney in your corner will protect your rights amidst a highly emotional situation. While you’re free to represent yourself, things can get extremely risky—especially in more complex cases. You could wind up losing everything.
If you are looking for a divorce attorney in Georgia, you may consider Stearns-Montgomery & Proctor and their dedicated team of legal specialists in divorce and family law. The team at Stearns-Montgomery & Proctor is there to guide you through every step of your divorce process, no matter how complicated it seems. Reach out today to schedule a consultation.