Legal Separation 101
Legal separation is a legal union whereby a husband and wife remain married, but are not living together. Since legal separation occurs while both parties remain married, it is different from divorce. Divorce fully legally terminates a marriage. This is often viewed as the option when a couple can no longer live together and still be married. Legal separation is often an excellent option for couples who are not certain whether they should divorce.
In Georgia, legal separation allows spouses to remain married while living apart. It is similar to divorce in that a couple will divide property and finances and sort through custody of children. The main difference is that in a legal separation, a court cannot divide property that is not legally marital. For example, if one spouse brought assets into the marriage and those assets are legally separate, the court may not be able to award such assets to the other spouse or require spouses to divide the assets .
Legal separation may be the right choice for a couple who considers separation but has some concerns. Reasons that couples consider legal separation include:
Some couples discover that the imagined burden of being legally separated is actually far greater than the stress of remaining in a relationship that is not totally ideal. A legal separation becomes a divorce when one or both spouses file for divorce. In Georgia, separation does not necessarily require a court order or filing.
Since Georgia does not have a legal separation proceeding, spouses are free to agree on a separation without having a court order in place. However, a couple must file for divorce and seek an interim order concerning issues such as possession of a home, child custody and support and income requirements.
Cost of Filing and Common Fees
As with marriages that end in divorce, legal separation in Georgia involves court fees and costs. However, since the court filing process for a legal separation is actually more straightforward than all-out divorces, it also tends to cost less. The basic filing fees for a legal separation procedure in Georgia are $210 in most counties. The general exceptions to this fee are DeKalb, where the fee is $222, and the City of Atlanta, where the fee is $215. You may also have to pay for publication fees if one spouse cannot be served in person. The publication fee in Georgia is generally around $150. That number can set up a sliding scale in some areas, but won’t go much higher than $200.
Employing an Attorney
Hiring an attorney to assist you in the legal separation process can add to the cost you are already incurring due to your monthly living expenses. Your attorney’s fees will often depend on the complexity of your case, the education level of your minor children, and how long you and your spouse have been married. Several other factors can increase your attorney’s fees including a lack of communication between your and your spouse, your spouse’s unwillingness to meet your reasonable needs, the complexity of figuring out your marital assets, and how far through the litigation process you are when you decide to hire a lawyer. As a general rule of thumb, the more "things" you and your spouse can agree on, the lower your attorney’s fees will be. Conversely, the more disagreement there is between you and your spouse, the higher your attorney’s fees will likely be.
Although it is difficult to estimate the cost of legal fees within an article like this, a maybe too simplified version will give you a general idea of where your lawyer’s fees will fall within for a legal separation in Georgia. If your marriage is relatively short-term, meaning five years or less, you’re going to be at the lower end of the attorney fee range, likely paying between $3,000 to $5,500. For marriages that last from six to ten years, the fees could run from $5,500 to $10,000 or more. If your separation and impending divorce entail issues such as a long-term marriage (10 years or more), significant real estate holdings, children whose needs have been unmet for some time, and/or significant business holdings, your fees could run upwards of $20,000 to $50,000 or more.
Some law firms will charge you a retainer fee and then bill you for all time your attorney spends on your case. Other law firms will charge you in set increments of time. The amount your attorney charges you for bills is usually determined on an hourly basis, with the average hourly charge running anywhere from $150 to $450 per hour. Generally, attorneys will not charge you for a consultation. You will begin to accrue attorney’s fees once your attorney files documents on your behalf, makes phone calls on your behalf, prepares documentation on your behalf, or attends meetings on your behalf.
Other Fees
If spouses have children, it could well be that there are significant costs for counseling, mediation and attorneys’ fees. If one spouse is alleging that the other has been abusive, there are costs for obtaining domestic violence protective orders, going to court, paying for attorneys, counselors, mediator, court reporters, etc. There could be significant discovery costs, especially if you have a spouse who hides marital assets or underreports income. If you have a spouse who makes a lot of money, but then takes cash payments in his or her business so as to avoid reporting that income , it could well cost several hundred thousand dollars to reconstruct that family’s finances. If a spouse is purposefully delaying the case, there will be substantial costs associated with that obstructionism. There are additional costs in preparing postnuptial agreements, divorce settlement agreements and all the other agreements that one sees in a complicated divorce case. One can foresee a situation wherein a divorce may well be the least expensive method of resolving an otherwise awful marriage.
Money Considerations
Here is where legal separation becomes even costlier: if you or your spouse have significant assets or multiple sources of income, the division of property and determination of spousal support can add significant complexity to an already intricate process. For example, when dividing retirement assets, your attorney and the judge may need to retain the services of an accountant of a pension professional, which will obviously add to the total cost. Also, if your spouse intends to contest the separation, you may be facing months or years of protracted, dragged-out litigation, with all of the corresponding costs and legal fees. Even in a more straightforward gung-ho approach, the legal process of dividing the assets and debts in the marital estate may require assistance from financial experts, as well as divorce attorneys, mediators, and maybe even other third-party professionals.
For most separating spouses, it’s worthwhile to seek the assistance of a financial expert for the purposes of valuing particular properties, investments, and retirement accounts, some of which may be difficult to determine on your own. Your attorney will also be able to provide a valuable estimate of what to expect based on the particular facts of your case.
Cost-Saving Tips
If you truly cannot afford to pay an attorney a retainer and your spouse does not have advanced wealth and is willing to come to an amicable agreement to share the costs, you can limit your overall expenses by reducing the number of hours that both parties’ lawyers bill. For example, you could both agree to work from one source of information so that no duplicative effort is taken in gathering this information. If there are no issues concerning child custody, you could agree to only use one of the lawyers in the negotiation regarding your children’s schedules. You could agree to discuss between yourselves what material you would like each other to review in order to keep the time spent reviewing material down. You can agree that your lawyer will spend less time communicating with your spouse and his/her lawyer and focus on drafting a settlement document that each party can agree to , rather than going back and forth on each provision in the document. (Sometimes lawyers will reduce their fees if they see that their client is being uncooperative.) You can agree to limit the amount of time communicating by telephone in order to avoid phone bills that rack up when your spouse has become angry during certain telephone calls. You could agree to draft the final settlement document and then go to an attorney for help in drafting the legal language or for review of the final draft. Or you can choose to use a reduced fee or a pro bono legal clinic.