Legal Separation in Georgia
Technically, there is no such thing as a legal separation in GA. However, you can file for a separate maintenance action, defined as a judicial determination to separate spouses and provide support without a judicial termination of the marriage.
Why Would You Request a Separate Maintenance Action?
- The court makes the same decisions about child support, child custody, and alimony as in a divorce.
- You and your spouse are legally separated but not divorced.
- You and your spouse are still technically married but not responsible for one another.
How to Get a Separate Maintenance Decree in Georgia
Separate Maintenance Decree
A separate maintenance decree or agreement accomplishes many of the same things that divorce accomplishes, but allows the two spouses to live apart and still remain married. It essentially acts as a Legal Separation, although it is not referred to as that. You can settle child custody, child support, alimony, property division, and more—all with a separate maintenance decree while avoiding divorce. A separate maintenance agreement allows spouses to maintain health insurance benefits, enjoy tax breaks, pool their money, and more. Another benefit of separate maintenance decrees is time. Under Georgia code 19-5-3, divorce proceedings cannot begin until a 30-day “cooling off” period has concluded. This waiting period does not apply for a separate maintenance action, which, in addition, may take less time overall.
Criteria for Maintenance Decree in Georgia
Under O.C.G.A. 19-6-10 (2010), the following are necessities for a separate maintenance decree in Georgia:
- A marriage must exist between the two parties;
- The parties must be living separately;
- There is no pending action for divorce.
How to File for Legal Separation in Georgia
Now that you know what a separate maintenance decree is, you need to know how to file and prepare for it. Just because a separate maintenance agreement is not a divorce, does not mean that it will be simple. Separate maintenance agreements are often complicated, spouses may not be quite as agreeable as they initially thought they would be, and all documentation needs to be legally binding and in perfect order to present to the court. Working with an attorney is highly recommended over the do-it-yourself online version.
What is an Informal Separation Agreement or postnuptial agreement?
Informal separation or postnuptial agreements in Georgia, while not recognized by the state as a legal separation, may be a good option for couples who wish to continue receiving the legal and financial benefits of marriage without living together. According to Psychology Today, a temporary separation may even make a struggling relationship stronger in the long run.
During an informal separation, some couples may pursue a divorce, child custody, or related goal, while others may wish to simply remain separated. Typically, couples without large shared assets or children, as well as situations where neither spouse requires financial support from the other, are best suited for informal separation. Benefits of informal separation include:
- Saving the relationship during the trial separation period;
- Maintaining healthcare benefits through the other spouse’s employer group plan;
- Maximizing the tax-savings benefits by filing jointly;
- Helping to secure loans and mortgages;
- Securing Social Security benefits via the 10-year requirement (according to the Social Security Administration, certain individuals can receive benefits on their ex-spouse’s record if they are divorced but their marriage lasted 10 years or longer, and they meet other criteria);
- Maintaining certain military benefits;
- Upholding cultural or religious beliefs.
If the legal separation is intended to be permanent or long-term, the arrangement will work best between couples who have ended the relationship amicably. Couples whose relationship is highly volatile may not benefit from an informal agreement.
When Informal Separation May Not be Suitable as a Long-Term Solution
Informal separation is not for everyone. A divorce may be necessary if your marriage has any of the following issues:
- Child custody, parenting plans, child support, or spousal support become contentious;
- Either spouse has financial troubles due to gambling, unexplained spending, or an addiction (lenders may come to the other spouse in pursuit of unpaid debts, which he or she could be liable for paying);
- The spouses do not get along anymore;
- One spouse wishes to remarry.
Pros and Cons of Legal Separations
While legal separation is not specifically recognized in the state of Georgia, a separate maintenance action may be what you are looking for, as this is Georgia’s closest equivalent. A separate maintenance action allows the couple to remain married, erases any responsibility that each spouse has for the other, and also provides important legal decisions regarding the following:
- Child support;
- Child custody and visitation;
- Marital property division, including debts;
- Possible settlement.
How Much Does it Cost to File for Legal Separation?
There are many benefits to a separate maintenance action over divorce. The cost of a separate maintenance action will depend on whether or not the parties agree to the terms, just like a divorce action. However, in a divorce action, it is likely that the parties will be more contentious and that will likely cause the costs to escalate. Whether you are low-, middle-, or high-income, there are many other benefits of filing for a separate maintenance action, including:
- Maintaining benefits of marriage: Marriage comes with a number of financial benefits, such as tax savings, medical coverage under a spouse’s employee insurance plan, and more.
- You have not been a state resident for very long: Under Georgia code 19-5-2, the residency requirement for filing for divorce is six months. If you have not been a resident for at least six months, you may not divorce. However, no residency minimum time limit is set for separate maintenance agreements.
- Religious or cultural beliefs: Many people cannot get a divorce without violating their religious or cultural beliefs, or harming their relationship with their community or family.