Legal Separation: The Georgia Process Explained

Legal Separation in Georgia: What Is It?

Divorce is a legal process that will terminate the marriage and remove any obligations of one spouse to the other. Several issues must be addressed including property distribution, alimony, child support, custody arrangements, and sometimes, division of debts.
Georgia law does not require couples to divorce. A legal separation is also a legal option for parties. The action is filed with the Court and the wife or husband can ask for a variety of orders as part of the action (more on that in a subsequent post).
Legal separation is more commonly known in some jurisdictions as "separation from bed and board" or a "bed and board divorce." Legal separation does not mean that all marital property has been divided between the parties, but that the parties are living separately.
Many people are surprised to learn that Georgia does not provide a legal separation status. Many jurisdictions allow for bed and board separation and then modify their state divorce laws to provide for dispositions of marital assets and debts in a quasi-divorce proceeding. In Georgia, there are no provisions to address marital property, debts, alimony and custody, etc., via a legal separation.
In Georgia, the action of legal separation is not as common as it once was. Prior to the adoption of the no-fault divorce law in Georgia, legal separation was an alternative for a spouse who had religious beliefs against obtaining a divorce. Today , Georgia has one of the most liberal no-fault divorce statutes in the country, and most litigants are not interested in legal separation. In fact, most of our clients do not even know that it exists.
Some couples separate without legally divorcing until later. When a couple separates, they may start the process of dividing assets. They might decide that they will stay married until one party remits an appropriate amount of money to the other spouse for his or her contribution. The spouse who leaves the marital residence may also begin paying a pro rata share of child support and possibly spousal support. This is a temporary arrangement until the divorce is finalized. A separation agreement is the way to divide liabilities, which must be paid. If an agreement cannot be made to part ways voluntarily, judicial intervention is often necessary.
In some cases, a spouse may delay a divorce for some period of time because health insurance laws require a spouse to be covered on the other spouse’s insurance until a divorce is finalized. In these situations, the couple is still legally married, but is living apart. Legal assets often need to be divided, but the decision to divorce has not been made. This is a much rarer circumstance. If you believe legal separation may be appropriate in your case, please contact our office today.

How to Get Legally Separated in Georgia

Once you take the step to separate from your spouse, meaning taking action to avoid commingling your finances and living at separate residences with the hope of possibly reconciling down the line, the next step in Georgia is to prepare a legal separation agreement. The agreement will discuss how you and your spouse will divide the assets and debts based upon whether or not you feel that you are going to reconcile or are headed for divorce. Of course this will all vary based upon your assets and concerns. Georgia requires you also to file for Divorce as well, even when you are filing for legal separation. Once you have filed and served the action you will have to go to mediation. The mediator will attempt to assist you and your spouse in coming to a final agreement. If the mediator is able to assist you and your spouse, a Marital Settlement Agreement will be drawn up, submitted to the court, and entered by the court. If a final agreement is not reached, either party will be able to move forward and finalize the divorce.

Elements of a Legal Separation Agreement in Georgia

The legal separation agreement is the primary contract that separates two spouses and their property, earnings, and living arrangements in Georgia. In many ways, the legal separation agreement may be more involved than the actual divorce that follows. This is because the separation agreement is not ultimately ruled on by a judge but is instead used as the basis for a subsequent agreement or divorce decree that will be. When petitioning the court to grant a legal separation, you will need to present the agreement as a legal document. It must enumerate the rights and responsibilities of each spouse.
Uncontested divorce lawyers in Atlanta will tell you that the separation agreement should include the following elements: Property Division: Both spouses should agree how their assets will be divided. The assets include real estate, bank accounts, stocks, bonds, business interests and more. Additionally, any debts should be divided at this time. If no agreement is reached, the family court will have to determine how to divide property during the ensuing divorce and mediation may be necessary. Health Insurance: Oftentimes, one spouse has health insurance for the entire family. The segregation agreement stipulates how insurance responsibilities will be divided during and after the process. Spousal Support: The separation agreement should outline whether or not alimony will be paid. If you and your spouse have maintained the same standard of living for an extended period of time during the separation, you may not be able to change your lifestyle post-separation. Child Custody: Finally, the separation agreement should outline how parenting time will be divided between the parents. If you have children, your agreement will lay out in detail custody and mediation may be necessary to create a fair plan.

The Effect of Legal Separation on Property and Finances

The consequences of legal separation on finances, such as spousal support, can impact the financial future of both spouses. Spousal support, otherwise known as alimony, is the monetary payment one spouse makes to the other spouse, as ordered by the Court. Although Georgia does not recognize legal separation, spouses can live separate and apart without being divorced. The Georgia Divorce Code addresses spousal support in a few different areas, including the chapter on divorce and during a temporary hearing before a divorce becomes final. The general rule during the pendency of a divorce case is that neither spouse owes an obligation to the other spouse until the Court orders it, except for the temporary hearing on a motion to compel. Because they are similar, and one can affect another, the laws on spousal support are discussed in the sections which follow.
In Georgia, the most common type of spousal support is periodic, which is a monetary award over a period of time. Permanent periodic spousal support terminates on the death of either former spouse. If the receiving spouse remarries, then the obligation continues but is suspended unless and until the receiving spouse can show that husband or wife is unable to support herself or himself due to changed circumstances. In this case, the receiving spouse must prove a substantial change in income not brought about by the recipient’s misconduct, which takes away the ability to support. If the award is lump sum in the form of a one-time payment then the obligation will terminate on the death of either spouse. On the other hand, permanent lump sum spousal support does not terminate on the remarriage of the receiving spouse like periodic alimony does.
While the divorce laws in Georgia do not refer to legal separation, spouses who are separated have certain obligations under Georgia law. Georgia law requires that one spouse may not sell or dispose of marital property unless an agreement exists between the spouses. The assets include real property, bank accounts, jewelry, cars and other personal property. Moreover, both spouses have a fiduciary duty to keep all assets safe and secure during the legal separation.
The standard of review for spousal support is the same as for a divorce – an equity of all circumstances surrounding the marital relationship, including the periodic payments or lump sum awarded. The statutes address the following factors on which the trial court must rely when making a decision: the contributions of each spouse to the acquisition, preservation, and accumulation of marital property, whether the distribution will be in gross or by periodic payments, the conduct of the parties towards each other during the marriage, the duration of the marriage, the age and physical and emotional condition of both the husband and wife, the financial condition of both the husband and wife when the award is being made, the extent to which that that spouse contributed to the financial well-being of the other with regard to the acquisition of marital assets, the economic or noneconomic contribution of each spouse to the family unit, including, but not limited to, child care, homemaking, and career-building in the family business or employment efforts, the conduct of the parties during the marriage as relating to each other, the aforementioned standard of living of the parties during the marriage, and any other factor that the court considers necessary and proper to provide for a just and equitable award.
Keep in mind that in a Georgia divorce, the trial court must determine what qualifies as marital and non-marital assets. The basic rule is that all property acquired during the marriage is marital and subject to equitable distribution. Property acquired before marriage or after a couple separates is separate property. Further, in Georgia, separate property is not subject to division by the trial court, but the court may recognize a party’s contribution as separate property to the value of the asset. For example, contributions made to the home including mortgage payments, and contributions made through the labor, money and other resources of a spouse is marital property subject to equitable distribution. The trial court must give due regard to each lump sum or periodic award made from a marital asset or the earnings and accumulations on such an asset or from property apportioned to a party.

Legal Separation and Child Custody and Support

Child custody and support can be a source of conflict during a legal separation in Georgia. When parents are living apart, they have to agree on how to split their time with the children. If they cannot come to an agreement, a court will likely have to step in and dictate custody. A judge will take the best interest of the child into consideration when deciding on custody during a legal separation, just as they do during traditional divorce.
Custody is generally handled separately from child support, although the amount of time a child spends with each parent could impact how much support is payable. Your attorney should be able to roughly estimate what a typical award would be in your case, according to the Georgia Child Support Guidelines.
Typically, judges are reluctant to rule that parents should have a 50/50 split of custody. Father may have the kids three weekends per month and every other Wednesday from 5 p.m. to 9 p.m. Mother may get Tuesdays and most of the summer. Parents will try to negotiate a plan that works for everyone that includes a set schedule and flexibility when needed . A court will look to see if the custodial parent can provide a steady and comfortable environment free from parental abuse and drug or alcohol use. Children also have to be protected from conflict between the parents.
Child support calculations incorporate the amount of time parents have with their children. The less time a parent has, the more likely it is that he or she will have to pay more child support. Most commonly, the court will look at the income of both parents, child care expenses, health insurance premiums and the number of nights the child will be with each parent. The income of the child is not counted in these calculations.
Just as parents can modify a divorce decree later on, they can also modify a separation order. If circumstances change, such as a job transfer or difference in income, they can petition the court for a modification of the separation agreement. Courts may be willing to modify child custody agreements if the children are suffering from the arrangement, if one parent is not complying with the agreement or if the parents are no longer in a dispute and are willing to work together.

When to Seek Legal Advice from a Family Law Attorney

Consulting a family law attorney is crucial in Georgia, especially to protect your rights and interests. The process of legal separation in Georgia, especially when it involves the division of property and other assets, can be daunting. When you are uncertain about the process and your legal rights, you need to consult a family law attorney as soon as possible.
For example, when you have children, you have to make decisions about child custody and other parenting issues. Perhaps you need to know whether or not you are entitled to child support or spousal support or alimony. When you are unsure about how Georgia law applies in your specific case, you need to speak to a family law attorney.
Your attorney will be guided by the "Best Interests of the Child" standard when advising about parenting issues. With respect to child support, Georgia law requires judges to apply a specific formula rather than discretion in most cases. In addition, spousal support is another legal matter that can be a source of contention between parties. A divorce lawyer or family law attorney advocates for the best possible outcome on your behalf.
Moreover, Georgia law has a statute (O.C.G.A. § 19-6-15) which allows children to receive financial support beyond the age of 18 years (or high school graduation). If you anticipate that one of your children may go to college or private school, it’s crucial to consult a family law attorney regarding possible support obligations and how these will be calculated, which is in part governed by income.
Whether in a divorce, annulment, or legal separation, Georgia family lawyers help achieve a fair and equitable result in the end. Finally, family law attorneys generally work on a flat fee or hourly basis. Thus, how and when you seek legal advice may not be based on hourly rates or other considerations, but rather on issues that affect your future, such as custody of children and the division of property, among other important matters.

Options Other Than Legal Separation in Georgia

In addition to pursuing a legal separation, Georgia residents may also choose separation without a formal agreement or pursue reconciliation. While those solutions may not be appropriate for all couples, they both have their merits.
When a couple separates without a formal agreement, they may live apart in peace until one spouse decides it’s time to file for divorce. However, this solution only works for couples who can get along with one another after deciding to live apart. This option does not provide any legal or financial protection for either spouse if the other decides to make life difficult until the divorce is finalized.
Reconciliation is another possible solution for separating couples in Georgia. Many married couples find successful reconciliation through marriage counseling. While certain couples may prefer to split up and get divorces, a good many of them simply need time and therapy to work through their problems.

Legal Separation in Georgia: Commonly Asked Questions

Here are some of the more common questions I encounter:
How long do you have to be separated before you can file for divorce in Georgia?
Georgia does not have a "separation" period prior to filing for divorce, however, with two grounds for divorce, adultery and conviction of a felony, either requires a 1-2 year separation.
Can you turn a legal separation into a divorce?
Yes, if you signed a separation agreement then your separation has already begun the divorce. You will just need to modify a few aspects of the agreement and file for divorce.
Am I legally separated or fundamentally divorced?
There is no "legal separation" in Georgia. You can be "legally separated" while still married, but generally there is not sufficient financial incentive to do so. A separation with a separation agreement can be a good way to reduce financial issues that accrue due to a contested divorce.
Is legal separation an alternative to divorce?
Yes, it can be used as an alternative in some cases . Generally though, a legal separation is not as easy as just getting a legal paper drawn up. You will want to ensure you have a lawyer look over the separation agreement before you sign it.
Are there any rights for the spouse if the other one leaves the family home?
Separation does not grant custody or visitation rights for parents and children. When one spouse leaves, it does not mean they do not have any rights to the kids and it does not mean they do not legally have access to marital property. If one party leaves, it is a good idea to discuss legal options so that you can protect your rights before the other party removes you from the residence or obtains exclusive possession.
Does fault play a role in legal separation?
A legal separation can be completed regardless of whether or not you have grounds for divorce, however, if you do have grounds for divorce then it may be better to proceed with a divorce instead of wasting time with unnecessary legal fees on a separation.