Legal Separations In Georgia: How is it Different from Divorce?

July 28, 2021

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In Georgia, the term legal separation is used to refer to the separate maintenance action. Legal separation is an alternative for divorce but is not the same as divorce. If you are thinking of considering a legal separation, it’s vital for you to learn the nitty-gritty of legal separation and the aspects that can be challenging in your case.

What Does Legal Separation in Georgia Look Like?

Legal separation takes place when a couple considers living separately without ending their marriage. Unlike many other states in the USA, spouses in Georgia do not need to file for a legal separation before applying for a divorce.

Whereas, either of the partners can opt for an action of separate maintenance to resolve all the similar issues without having to dissolve their marriage legally. Just like divorce, legal separation can be a mutual arrangement wherein both spouses decide to live individual lives without terminating the marriage. Or, it can be a result of a contested case, which can potentially result in a court-decided resolution.

In a legal separation, the term financial support is known as “separate maintenance” in order to figure out the alimony for the spouse who is living separately without ending their marriage.

There are a few qualifications that are required for the separate maintenance:

  1. The couple applying for legal separation should be legally married.
  2. You and your partner must be living separately.
  3. None of you has filed an application for divorce.
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What is Included in a Separation Agreement?

Legal separation in Georgia requires both the partners to come to a mutual decision about the different issues that would be addressed in divorce as well. This can be about child custody, child financial support, visiting arrangements, and spousal support.

The separation agreement also includes other terms regarding the distribution of funds in the bank accounts, property distribution, assets, vehicles, etc.

How Separate Maintenance Works in Georgia

Unlike the other states in the USA, the legal separation in Georgia offers an option for separate maintenance. That means that a spouse can request alimony without the need to get a divorce.

However, the term alimony is not used in a legal separation. Hence, separate maintenance is not known as alimony—the main reason being that the couple is still legally married in the eyes of the law.

The aspects that are taken into consideration while figuring out the separate maintenance are similar to those in alimony. That includes,

  • The duration of the marriage
  • The quality of living during the course of the marriage
  • The age of both the spouses
  • The physical, mental, and emotional health of both the partners
  • The financial condition of the paying partner
  • The financial requirements of the financial support requiring the partner
  • Various contributions for quality marriage- like child care, education, career-building of the other partner, homemaking services, etc.

How is legal separation different from divorce in Georgia?

1. Child Support and Alimony

Just like in a divorce, the courts in Georgia offer child support as well as alimony to spouses in legal separation action. Even though the court of Georgia doesn’t use the term ‘child support’ or ‘alimony,’ the court has kept clear provisions for providing child support as well as alimony in a separate maintenance action.

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The court can modify this alimony or child support order agreement in case either of the partners applies for divorce during the separate maintenance phase or after the separate maintenance phase. In that case, all the previous separate maintenance orders get replaced by the order passed during the divorce.

2. Child Custody

Just like in divorce cases, child custody is also discussed and decided in Georgia. Though the separate maintenance statute of Georgie doesn’t refer to the term ‘child custody’ anywhere, the courts are still authorized to offer the custody of the child(ren) in separate maintenance action.

Georgia’s child custody statute applies to all cases wherein the custody of the child needs to be taken care of. So even if you have not explicitly mentioned child custody in a separate maintenance petition, the matter will be taken care of by the superior courts.

Moreover, if the couple awarded the custody opts for a divorce, the court would modify the child custody award, provided the petition for divorce has been filed in the county of the partner who has been provided the child custody.

3. Division of Property

The critical difference between the legal separation and divorce in Georgia is witnessed in property division. The court of Georgia does not offer authorization for the distribution of marital property in the cases of legal separations.

The appellate jurisdiction courts of Georgia have been pretty clear about the same. You can file the claim for property distribution only in divorce cases. However, the same point has not been clearly mentioned in the separate maintenance statute. The instances wherein the court states that divorce is the avenue to take the division of property can be taken were not separate maintenance cases.

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So, if you are considering a legal separation in Georgia, it’s vital to know that the decision of the court regarding the property distribution can be quite unpredictable. Even if you and your partner have been pretty clear about the division, the court might order for no division of the property. The court might even refrain from issuing any order related to the division of the property.

Why Choose Legal Separation in Georgia Instead of Divorce?

The decision to opt for a legal separation or divorce entirely depends on the couple. The decision changes from one couple to another. There are instances wherein the couple is not entirely sure about dissolving the marriage altogether. Hence, consider legal separation as a way to lead individual lives without ending the marriage. Some couples opt for legal separation over divorce due to the fear of the negative impact on the child’s upbringing or society’s reputation, or religious fears.

Well, that doesn’t mean that it’s the emotions that are one or the other way responsible for making couples in Georgia opt for legal separation instead of divorce. Partners in Georgia sometimes prefer legal separation for financial reasons. That can be related to insurances, claims, and taxes. That also includes the instances wherein the couples share mortgage loans, joint saving accounts, fixed deposits, etc.

Whatever the reason be, legal separation is always a good option for couples who are ready to agree on things mutually and looking forward to an option that can benefit both of them.

The bottom line is that before considering a legal separation, you must weigh all the pros and cons and rethink whether it’s the best decision for you and your partner.