All About Legal Separation In Georgia
Legal separation is defined by laws of the State of Georgia. A legal separation in Georgia describes the process by which the spouses set out their rights and their obligations while they no longer choose to live under the same roof together. The parties have determined that they do not choose to proceed with a divorce for whatever reason but also understand and recognize that they do not wish to live together as a married couple . This is the point at which the parties understand the need to have some order to address custody and parenting time, division of the finances or debts, perhaps sale of the marital home or visualization of the process by which the marital residence may be retained until the minor children have reached the age of majority and other issues that they have agreed upon. The parties will confirm information about the date of marriage, employment history, any involvement of third parties in the marriage which may include family members, friends and the like and prepare to go forward until the parties ultimately divorce. If finality is the objective then the parties must recognize that they cannot be married and separated at the same time. They are either married or they are divorced.
Legal Separation Requirements
Requirements for Legal Separation in Georgia
While there is no special process or form a couple must fill out to become legally separated, there are still a number of prerequisites that must be met to make it legally binding. First, a couple must be legally married under any conditions where a marriage would typically be recognized in the State of Georgia. These conditions include:
• Being legally married
• Being of legal and mental age to marry
• Having not experienced prior eliminations to your marriage ability under Georgia law
As part of your legal separation in the State of Georgia, both spouses must "move out" of the marital residence and can not live there together. This does not prohibit you from cohabitating after this action; however, it will provide you the freedom of being able to fulfill the legal requirement of separation for at least 30 days. The residency requirement is outlined in the code below.
Code: O.C.G.A. § 19-5-2
Separation; When barred by other marriage
(a) Except as provided in Code Section 19-5-3, an action for divorce shall be barred if, at the time of the action:
- (1) The parties to the marriage are living together; or
- (2) The parties shall not have been living separate and apart continuously without cohabitation for a period of six consecutive months; or
- (3) Seventy years of age and any party refuses to such separation.
(b) In the event an action for divorce has been barred pursuant to subsection (a) of this Code section, nothing in this Code section shall prohibit an action for spouse’s support, alimony, separate maintenance, or division of marital property.
How To File For Legal Separation
To begin the legal separation process in Georgia, one spouse must file a Complaint for Separate Maintenance with the appropriate Superior Court. It is important to note that a legal separation in Georgia does not require parties to file for divorce, and there is no such thing as a legal separation in Georgia. The filing of the Complaint for Separate Maintenance will result in the initiation of the legal process of separation.
As a preliminary matter, Georgia law allows the filing of a Complaint for Separate Maintenance in any Georgia county where the parties reside. Georgia provides for the temporary injunctive relief for parties who file for separate maintenance under O.C.G.A. § 19-6-9. Specifically, prior to setting a hearing on the merits concerning the separate maintenance action, either party may file an Application to Enforce Temporary Restraint Orders pending the outcome of the litigation. Furthermore, if one party has sought temporary relief, the other party has the right to seek redress from the court following the Application.
The format to such a Complaint filed with the court is akin to that of a Complaint for Divorce. In his/her Complaint for Separate Maintenance, the plaintiff spouse sets forth the following: jurisdiction and venue, factual allegations as to the marriage, separation, and grounds for seeking separate maintenance, a request for temporary injunctive relief; and in addition to the typical requests for alimony and attorney’s fees, and in some cases, equitable division of property, the plaintiff spouse may also request injunctive relief. Georgia law provides that the court may in its discretion provide:
(i) alimony from one spouse to the other spouse and adjust the alimony as justice and equity may require;
(ii) child support from one spouse for minor, dependent children of the spouses;
(iii) equitable division of jointly owned property, whether it was acquired prior to the marriage or during the marriage; and
(iv) injunctive relief as the circumstances may require to enforce the separate maintenance award, including an order restraining a party from certain acts such as transfer of property, harassment, interfering with the spouse’s employment, etc.
After the Complaint for Separate Maintenance has been filed and served upon the other spouse (defendant spouse), after ten (10) days, the plaintiff spouse can then file a Request to Enter Default Judgment with supporting affidavits showing notice to the defendant spouse and certificates of service of such notice sent by certified mail, return receipt requested, and filing original returns of service. The defendant spouse then has a period of twenty (20) days in which to file her Response Contesting Entry of Default with the court, after which time the court will enter a default judgment in favor of the plaintiff spouse. In addition, the court will also issue a Notice of Hearing informing parties of a hearing date in which the court will hear testimony and be informed of the particulars of the complaint for separate maintenance, to be followed by a ruling by the court. In essence, this is the legal separation process in Georgia.
Georgia Legal Separation and Its Financial Impact
In Georgia, property division and spousal support issues are typically handled the same way in a legal separation as in a divorce. Much like a divorce, the Court will divide assets obtained during the marriage into marital (owned jointly) and nonmarital (owned separately) assets. The distinction is that the separation agreement may determine whether and how a spousal support award will be made and in what amount. If periodic spousal support is awarded in your separation agreement, the separation agreement is binding and cannot be modified by a court (even upon divorce) when the award is for a specific time period.
The Separation Agreement will also contain a Parenting Plan which deals with the co-parenting of any children that you may have. This will include an award of legal and physical custody, a parenting schedule, and child support payment information.
A legal separation does not alter the tax treatment of child support payments in Georgia. Child support payments are not deductible to the paying parent for federal tax purposes and should not be reported as income on the tax return of the paying parent. Similarly, the payments are not considered taxable income to the recipient parent. The recipient parent must not report the payments as income for federal tax purposes. Like child support, alimony payments are not deductible on the federal tax return of the recipient parent and should not be reported by the recipient as income. The paying parent is allowed to deduct the payment paid during the tax year to the extent the payments are regularly scheduled payments and are not "front-loaded" alimony payments.
Custody and Support During a Legal Separation
Child custody, visitation rights, and child support are key components of a legal separation agreement in Georgia. The agreement needs to address all aspects of raising your children, even when separated.
When agreeing to become legally separated, spouses must address the same parental issues as in a divorce, including custody, support, and visitation. A legal separation agreement usually includes child custody arrangements. Child custody includes physical custody (where the child lives and for how long), and legal custody (how decisions are made about the child’s healthcare, education, religion, and extracurricular activities). It is possible for parents to split both physical and legal custody.
The spouses can come to an informal agreement on custody during a period of legal separation. It is advisable to formalize the custody schedule before filing for divorce to avoid unnecessary issues down the road. If an agreement cannot be reached, the family law court will intervene and decide on custody and visitation based on the child’s best interests. Factors considered when deciding custody include:
In extreme circumstances , one parent may attempt to reduce the other’s chance of seeing the child. To prevent this, the separation should include decision-making processes for parenting time, when the child can visit a parent, and how often overnight visits can be taken.
Child support may also be addressed in a legal separation. The Georgia Child Support Guidelines provides sample incentive calculations for determining how much child support a non-custodial parent should pay. Neither the non-custodial parent nor the custodial parent can deviate from these calculations unless there is a good reason to do so. Often times when separating, the non-custodial parent pays less in child support than when the couple was living together. In addition, you may find that if you were not contributing equally to the per household child rearing expenses, your share may decrease when you separate. Child support payments should also account for medical insurance and extraordinary medical expenses for the child.
Is Legal Separation Or Divorce Better For You?
Wading through the options for ending a marriage can be a stressful part of the divorce process. Even once you’re ready to move on, it can be difficult to know whether legal separation is a better option than divorce. Legal separation is a process by which a couple remains married—but elects to live apart. Like divorce, the process is formalized in a court order that delineates rights and responsibilities, but it does not formally terminate the couple’s marriage.
Legal separation is sometimes called "limited divorce," and the two terms are often used interchangeably as "limited divorce" is the term that is used in Georgia statutes. However, Georgia law does not recognize legal separation as a cause of action for filing a divorce, so the courts are unable to enter an Order of separation.
Most people view legal separation in the same way as divorce except the couple remains married. Differences between legal separation and divorce Legal separation may also be preferable for some religious couples. In many cases, where a divorce means that one spouse would not be able to attend church, legal separation allows the couple to remain married while continuing to participate in their church community. Potential drawbacks of legal separation In most cases, the main potential drawback of legal separation is a legal separation agreement that becomes the basis for a divorce after 6 months. Once you separate, if you want to obtain a divorce, you must return to the beginning of the divorce process. Although during the 6 month period the parties may complete a lot of their divorce negotiations, the one year waiting period resets the couple’s timeline. You return to the beginning, where you have to file your action with the court and go through the entire process again. Despite being a potential drawback legally, you may be able to obtain a divorce much faster if you file for Limited Divorce first. Although some people may view legal separation as a middle ground that gives them time to work through their marital issues, it is increasingly viewed as a way to keep a marriage together by focusing on issues that can be resolved without resorting to divorce. The decision to separate from your spouse is never easy and will be a personal one for each couple. However, knowing the options and their various advantages and disadvantages may make this process easier to navigate. Conclusion Legal separation is not truly "legal" in Georgia, as there is no specific cause of action for separation, but it can be a great option for those who need time to get ready for divorce or who want to focus on their marital problems to see if they can ultimately resolve them.
When To Get Legal Advice
Like any legal proceeding, it is important to have competent counsel when taking the step of filing for legal separation in Georgia. Family law in Georgia is unique and there are no shortage of attorneys who can assist you with your case, the challenge is finding the attorney that will best be able to give the particular legal issues in your case the attention that they require. Of course there are a host of factors that go into choosing a lawyer.
One thing that I often find myself telling clients is that you want an attorney that does one thing. This one thing is practice in the area of family law exclusively. In my experience this usually means that the attorney you chose spends most or all of their time in the family law world, and that they regularly associate as a peer group , and on going ongoing basis with skilled family law attorneys who usually employ a similar model. The lawyer’s involvement in as many different aspects of the family law arena is only beneficial to the client. Good lawyers learn from other lawyers and become better themselves.
Of course choosing a lawyer can be more in depth than just what I have written here. But these last two weeks I have met with some people who had very little information about divorce, Georgia divorce law, and what the process might entail. I wrote the last blog and this blog on legal separation in Georgia assuming you might be in that same position. If this blog gets you thinking about talking to an attorney please take the time and speak to us. If it is not me then seek out a family law attorney that has more years under their belt than you do.