Navigating Legal Separation in Georgia: A Step-by-Step Approach

Legal Separation in Georgia

When people think of the term "separation" they often think of the act of separating while still remaining married. In Georgia, when a couple is separated it does not mean that there is a distinct document that separates them, although separation can and does result in the need for specific circumstances to be reduced to writing. Because Georgia does not have a law that recognizes "legal separation," this term means different things to different people. Most individuals that are simply in the process of determining if they should pursue divorce by calling out the term "separation" mean nothing more than they are not yet divorced but they live separate and apart. There is nothing more to this, it is just a term of art, colloquially used to explain the state of their marital relationship.
The first thing for couples wondering if they need to legally separate is to know that Georgia law does not require you to be separated in order to obtain a divorce . Georgia law does not have a "separation requirement" before proceeding with a divorce. This is not to say that there is not some preparation prior to divorce, because the logistical and procedural issues with a divorce are deeply weighted in the practicalities of money and timing. Separating may be a necessary step in accomplishing those goals as your attorney may recommend.
Of importance to note, there are certain acts that, if committed by one spouse, give the other spouse grounds for divorce. If your conduct causes the other person to incur expenses, then they may be able to bring a lawsuit against you after Divorce (which is what a divorcing spouse may do). If you are legally separated, your spouse may ask the court to give them support from you while you’re waiting to be divorced. Additionally, if you are a parent, there is some risk that you may not be able to see your child during this time.

Georgia Grounds for Legal Separation

The only ground for a legal separation in Georgia is the requisite statutory period of living in a bona fide state of separation without cohabitation. In Georgia, the required period is one year (aka the "cooling off" period), not two years as some may expect.
Georgia courts have defined cohabitation as the extent to which spouses reside in the same home, perform the functions of a household within that home, and/or engage in sexual relations during the period in question. Cohabitation could be shown where the parties otherwise maintain separate households but have spent some weekends or weeknights together at one another’s residence. Cohabitation can also be shown where, for example, the parties sleep together in the same room on a regular basis or share intimate physical contact on a habitual basis.
The requisite state of separation required by law does not include all periods of the preceding one year in which the parties lived in the same house and there was no sexual intimacy. Periods during which the parties worked out their differences and reconciled for a few days or weeks, only to fall back into marital discord, are not excluded in determining whether the one year separation period has been satisfied.

Georgia Legal Separation Process

The legal separation process in Georgia typically requires that spouses first file an action for divorce and then wait for the entry of a final divorce decree before they can proceed with a legal separation. Such a strategy is used in Georgia because the legal separation process only divests Georgia courts of jurisdiction prior to a divorce when certain types of actions are filed. In other circumstances, the spouses might be compelled by the divorce filing to remain married. Since equitable division issues can often be final per agreement or court determination prior to a divorce, such litigation and negotiations might often be completed while spouses remain legally separated.
In Georgia, the process for obtaining legal separation can only be used when a spouse chooses a specific statutory alternative to filing a complaint for divorce. That option requires that a spouse file a separate action for temporary spousal support, which then must be followed by entry of a court-ordered final award of a sum certain for spousal support. If a spouse elects this option and the court grants them spousal support, then they must obtain a written order from the court declaring that they are legally separated. At this point, the non-compensated spouse can object to the grant of permanent alimony under Georgia law, but they must first wait approximately 30 days for their 15 days to elapse from the date of service upon them of the order granting temporary spousal support.
However, most actions to obtain legal separation filed by a spouse usually entail dispute over rights to alimony following a divorce. Because the Georgia courts are authorized by statute to divide property of the parties only pursuant to the final judgment of divorce, spouses seeking a division of property and support without obtaining a final divorce must rely on the decree of legal separation granted by the courts. Since a spousal award is not yet final under Georgia law, it can be easily amended or set aside to allow property division issues to be determined in a later divorce.
Any award for non statutory alimony issued during the pendency of the action for legal separation can be enforced as necessary under Georgia law. Another benefit to employing this option for legal separation involves the inability for a spouse to engage in an action against the other party for a final divorce. Under Georgia law, spouses who are filers of an action for temporary spousal support are statutorily disabled from obtaining a judgment for divorce until at least 30 days after the date of service of the action upon the other party.
The effect of the statutes on Georgia legal separations include termination of the right to a divorce following a bona fide reconciliation of the spouses by at least one year. After that time, either spouse can initiate an action for divorce and join pending actions for equitable division of property. Although such proceedings are still eligible for amendment or vacation by the court, the language of the statutes provides that such periods of litigation create a strong presumption that the divorce court will adopt the provisions of the prior order into its final decree.
Should any issue arise regarding alimony payments, legal separation, or divorce, Georgia clients can seek the assistance of an experienced family law attorney at the law offices of H. David Wolff, Attorneys at Law, LLC.

Essential Legal Aspects of Separation

During a legal separation in Georgia, it’s important to consider the following key legal issues: asset division; child custody, visitation and child support; and spousal support/alimony. While these issues also come up during a divorce, there are some positive ways to address them during a marital separation to ensure your interests are protected for the future if it turns into divorce later.
Asset Division During the Separation
During the separation, it is particularly important to be careful to protect your interest in any marital property. If you leave the marital residence or provide your spouse with a signed quit claim deed to any jointly owned real estate, you may have given away any interest you had in that property. If you cash out of your joint bank account, you have given up your claim to those funds, even if you deposit them into your own account. If you stop making mortgage payments on your home, you may abandon your rights to that property.
In Georgia, marital property is subject to equitable division in a divorce, but assets held in your name alone and assets owned separately (that are not marital property) are fully owned by you. Given Georgia is a no-fault state, if you have committed adultery, you may not be able to receive an equitable share of any marital property to which you would otherwise be entitled in a subsequent divorce. As such, it is crucial that during your legal separation, you do not take actions that could be construed as had the intent to "abandon" or give away marital property because you may lose it forever.
Child Custody and Child Support During the Separation
Child support guidelines allow the court to draw a presumption of the amount of child support that should be awarded. However, when entering a written agreement during the separation as to child support, it is important to be aware that the judge may modify that amount when the divorce is final . If you agree to a higher amount than the guidelines would permit, the judge may not permit you to reduce it later. Most judges will follow the guidelines in the absence of an extraordinary reason to deviate from them. As such, if you enter a written agreement on child support during the separation, the amount you agree to should closely match the amount called for under the guidelines. It is always best to have this drafted up in an enforceable written agreement because when there is a dispute, a judge will then have the option to enforce the agreement signed by both parties.
With regards to child custody, this is an issue that can be negotiated at separation. As with all custody arrangements, you should consider what is in the best interests of the children. A flexible arrangement that puts the children first is the best option. The more flexibility you show, the better the co-parenting relationship will develop in order to manage parenting time in the future as the families needs evolve. This will also reduce your costs for filing petitions with the court and going to court to modify custody in the future.
Spousal Support
Spousal support, also known as alimony, should be determined at the time of the marital separation in writing. Georgia law requires the consideration of the following factors to determine whether alimony is appropriate:
If alimony is going to be awarded, the amount can be determined by looking at the reasonable needs of the spouse requesting alimony. Some courts do not require the consideration of marital misconduct in awarding alimony, but most courts do (since Georgia is a no-fault state, marital misconduct—such as adultery or abandonment—can be considered). The duration of the marriage is also relevant. In general, the shorter the marriage, the shorter the duration of alimony. There are some exceptions to this (a short-term marriage may have long-term alimony if there are special circumstances such as disability of the spouse).

Pros and Cons of Legal Separation

While legal separation is often viewed as a stop-gap for couples hanging on by a thread, it can actually have many advantages. Removing the immediate pressure and other challenges of living together, legal separation allows couples to step back from an immediate crisis to focus on the future – often resulting in better outcomes for everyone involved. Choosing legal separation gives you the time and space to determine if saving your marriage is possible, and if not, the information you need to make separation or divorce less stressful and more financially responsible. The advantages offered by legal separation can be especially beneficial for couples that may not need to separate permanently. There are other reasons couples may choose legal separation over divorce. A legally separated couple may decide that it is beneficial for tax purposes, insurance policies, or perhaps retirement funds. Additionally, legal separation allows couples to separate while retaining certain rights and protections available to married couples that are not available to unmarried individuals. Though legal separation can offer a useful tool to make living apart easier, it does have some drawbacks. For example, it can impact your tax liability and require doing some tax planning to separate dependent claims and other potential tax benefits. A legal separation does not terminate your marriage, so a spouse —good or bad— still has the right to share equally in marital assets and property after a legal separation, even if the marriage does not end in divorce. Dividing assets and property can become complicated, and contentious, during a legal separation.

Seek Professional Legal Counsel

While the initial request or desire for legal separation may stem from personal contemplation, navigating the formalities of this status requires the expertise of legal professionals. Consulting with an attorney is essential to understand the full scope of your legal rights, the implications of remaining legally separated versus filing for divorce, and the processes involved in obtaining a Separation Agreement. An attorney experienced in family law can help you draft and finalize a legal separation agreement that is not only legally sound but also tailored to your unique circumstances. They will address any specific needs you each have, working to ensure that the separation agreement thoroughly covers all aspects of your lives. This could include child custody issues, asset division, healthcare provisions, and financial responsibilities. A comprehensive separation agreement should address the necessary details to secure both parties’ interests without leaving room for potential future disputes . Beyond the separation agreement, an attorney can help you understand how your legal separation will impact matters such as child support, property division, and retirement benefits. Knowing in advance how these issues will be addressed and resolved if they arise can provide you with greater peace of mind going forward. Should you decide to discontinue the legal separation in favor of pursuing a divorce, an experienced family law attorney can guide you through the next steps in the divorce process. This is especially critical if you require temporary alimony until your divorce is finalized. They will help determine how much will be necessary based on your income and expenses, and obtaining a settlement with the help of a professional can avoid costly mistakes. Legal separation is an important step if you are considering divorce, and having an experienced attorney on your side during the process is invaluable.