Understanding legal separation in Georgia: essential points

What is legal separation in Georgia?

What is legal separation in Georgia? A legal separation in Georgia means the parties have voluntarily decided to live apart. As such, they are no longer sharing the marital bed, no longer sharing the same residence, and generally one of them is not paying bills in the manner as they may have if they were living together at the marital residence. In essence, it is like divorce, except the parties are not divorced.
The important aspects about a legal separation are that the parties must have an agreement, either an official written agreement (in the form of a Separation Agreement) or an oral understanding between the parties, that they will no longer reside together and they will no longer act as husband and wife. If this agreement is not present, there is no legal separation.
Occasionally, we will be asked by a prospective client if it is necessary for them to file an actual divorce, and not merely a legal separation, so that they may receive relief from the Court about partitioning up of joint property or restraining their spouse from depleting marital accounts or assets. This can occur during the pendency of the divorce if there are contested issues about asset division and protection underlying the divorce.
However , whether or not that is the case, a key thing about legal separation in Georgia is that there is no set procedure or statute in Georgia in which parties can file an action for legal separation. There is not a "Petition for Legal Separation" as there is a "Complaint for Divorce." And there is not a statute in Georgia that outlines legal separation or describes the legal separation process.
However, if parties execute a Separation Agreement, they can use that Separation Agreement to obtain the relief they desire from the Court, i.e., everything that is typically allowed in a divorce with respect to asset division and request for custody of minor children, etc. That Separation Agreement can be attached to the Complaint for Divorce, and the Court can incorporate the terms of that written Separation Agreement in the Final Judgment and Decree of Divorce as it would with a Consent Order.
Therefore, although there is no technical procedure for obtaining legal separation, the same relief that parties could obtain in a legal separation can be obtained by way of an action for divorce under Georgia divorce statutes.

Top reasons for legal separation

There are many reasons that couples seek legal separation rather than divorce. Sometimes, it is for purely personal reasons, while other times there are also legal considerations.
Personal Reasons
Think about how your health insurance is received. For some people, it is received through a spouse. If you are legally separated from your spouse, you may lose that coverage, and having another source of coverage can be costly.
Closely related to the above issue is the problem of spousal support. In the case of a divorce, you may be entitled to short- or long-term alimony. In a legal separation, you may have equitable support that sets you off from divorce.
A spouse may seek a legal separation in Georgia for religious reasons. If he or she is opposed to the concept of divorce, a separation may allow them to be apart from their spouse without committing the perceived sin of divorce.
Legal reasons
Even if your ultimate goal is to get divorced, you may seek a legal separation first for legal reasons. Spouses may jointly agree to separate for employment, health or educational reasons. This is especially true if one spouse’s job requires them to move away and they will return once the job ends.
Georgia law provides an alternative to filing for divorce that is right for some couples. By filing for a divorce and separating for a time, you put a mandated waiting period in place. If you choose to reconcile within those waiting periods, you can avoid divorce altogether, so long as you file for divorce within the mandated waiting period.
Some spouses use a legal separation to help them keep some of the benefits of being married. Many plans, such as Social Security and pension programs, become available to couples only after they’ve been married for a specific period of time. If your spouse remains responsible for your health care and your finances, a legal separation may help you both hold onto those benefits until you’re eligible for them on your own.
Whichever your reason for seeking a legal separation over divorce, you’ll benefit from working alongside a knowledgeable, experienced lawyer.

The legal process of separation in Georgia

To obtain a legal separation, no court appearance is necessary. Through the filing of an agreement, called a marital settlement agreement, the parties are able to divide their property. Usually, the parties agree on the payment of support, both in terms of alimony and child support, and may even obtain temporary child custody orders. Once approved by the Judge, these agreements will be enforced even though the parties do not necessarily have a final divorce.
As part of a legal separation, typically all debts and assets acquired after date of separation are the separate property of the parties. To handle any post-separation issues, the parties can create a new marital settlement agreement that will determine their rights going forward. Enforceability of such agreements will depend on Georgia laws regarding an agreement in place for a support award to a former spouse.
If there are children of the marriage, one party will bring the petition for legal separation, along with a child support worksheet, to the local Office of Child Support Services. The OCSS will process this application and put it on a list to be reviewed by a Child Support Specialist. The OCSS will send out a package with forms, instructions, and a referee hearing date in about 45 days.
If married couples have children, obtaining a legal separation may require the parties to appear before a judge at an informal hearing, called the child support referee hearing. If any issues cannot be agreed upon, the matter can be transferred to a contested hearing, for which notice will be given by the Court.

Rights and responsibilities in legal separation

The rights of spouses who are legally separated in Georgia can be divided into three categories: financial rights and obligations, inheritance rights, and principal residence rights.
Unfortunately, many people entering into legal separation periods fail to capitalize on their newly acquired rights, particularly in the area of financial support. For many people, being suddenly thrust into the single lifestyle is a financial shock. Spousal support exists to supplement the shortfall that leads to an inadequate standard of living as experienced by the dependant spouse. The dependant spouse must actually request spousal support. Once the dependant spouse has notified the other spouse he or she will need spousal support, the court will award it, unless the other spouse can prove that he or she no longer has the ability to pay it.
The dependant spouse’s income is designated as an "other income source" in property distributions, like other income increases. For example, if the spouse would be entitled to a 40% share of a marital property that would be valued at $100,000, he or she would be entitled to a 40% share of $120,000, the latter figure representing the value of the marital property plus the dependant spouse’s "other income source."
Legal separation is generally entered into as a means of separating custodial responsibility for children. A custodial parent will be responsible for providing the child with food, clothing, education, transportation, necessary medical care and paying child support. The non-custodial parent will be responsible for visitation rights, paying child support, maintaining health insurance, paying uninsured healthcare costs and paying weekly, non-weekend visitation/telephonic parenting-time.
During a legal separation, each spouse remains the legal heir of the other’s estate. Should one spouse die, without having provided for the other spouse through a will or trust, the laws of intestacy will determine what the surviving spouse receives from the estate. Once a divorce is entered, however, inheritance rights vanish.

Legal separation vs divorce: pros and cons

Will my legal bills be less expensive? Will I have to pay alimony? What happens to the marital home? These are just a few of the questions we hear each day at the Larkin Law Firm. Deciding whether or not legal separation is right for you is a major life choice. It is imperative you understand the risks and benefits of choosing legal separation over divorce. Strictly speaking, legal separation is a valid court order that allows people to separate their financial interests. In Georgia, there is no such thing as legal separation. The Georgia Family Code does allow for court ordered allowances for alimony and child support. Georgia also allows for the division of property, all of which can be included in a legal separation agreement. Here are some pros to legal separation: Legal Separation Is Best For: Parties who would have paid for divorce alimony anyway. This way , they have a chance to work on their marriage, plus use the spouses’ insurance as long as it is financially possible. If marital reconciliation is in the offing, this may be the best option. Here are some cons to legal separation: Legal Separation Is Best For: Parties who are really just at the point of divorce but unwilling to go through the Act. For those of you knee deep in financial problems, to be legally separated may give you time to get things in order, but it is not much different than a divorce. There is no way to sugar coat it. A divorce is an ugly business whether it is contested or uncontested. If at all possible, we advise parties to avoid divorce at all costs.

Legal separation and its effect on children

When a couple with children applies for legal separation, the court will often give consideration to the welfare of the minor children. All the matters related to children are dealt with as if this family is going through a divorce. Accordingly, if a legal separation is granted, the couple will need to address issues such as custody and property split before the separation is finalized.
Even though there is no imminent end of the marriage in a legal separation, the couple must still submit an agreement to the court on the management and custody of the minors. Once a legal separation is granted, a couple who does not have an agreed custody plan can ask the court for sole or joint custody. The court will then investigate the circumstances (such as income, health and age of the children) and determine the most suitable custody arrangement for the minors.
Apart from custody arrangements, a couple would need to consider visitation rights and child support if they have minor children; or divide all assets acquired during the marriage. However, unlike in a divorce, a legal separation does not involve or require dividing property if it is acquired after a court orders a legal separation. This is called a legal separation date.

Reconciliation or moving on: choices after legal separation

Once a couple has filed for legal separation in Georgia, it does not mean they are compelled to divorce. Some couples reconcile during the process or after a short time. In Georgia, there is no waiting period for divorce once a judicial decree of separation is obtained on proper showing. But the parties cannot remarry under those circumstances even if reconciliation between them takes place.
If both spouses want to reconcile and dismiss the action for separation, the custodial alone spouse can fire the attorney and let the case go away. When children or others permanent injuries are present that have given rise to the action, however, it is best for the moving spouse to at least obtain alternate counsel who can look into settlement options, make sure the other spouse is on track with corrective actions, e.g., substance abuse or reestablishing ties with children, and can explore alternatives that may not involve divorce, such as separate residences.
If the custodial non-moving spouse wants to initiate divorce proceedings, he or she does not need to file a whole new divorce action. The divorce petition can be simply filed into the judicial decree of separation action. But under Georgia law, unless the parties are properly before the court pursuant to an action for divorce in an exclusive dealing state, the granting of divorce pending separation proceedings is improper.

Engaging a lawyer for legal separation in Georgia

Finding an attorney who understands how legal separation may affect your ability as a parent or to gain financial independence is critical. That attorney will also be able to draft the legal documents in which your decisions about custody, child support, property/debt division, alimony and other issues are memorialized in a formal written settlement agreement. If children are involved, an experienced attorney will be able to help you navigate through the Georgia Child Support Guidelines and help you determine how post-separation parenting arrangements will work for you and your children . Similarly, if you are an older person who has not worked outside the home to any significant degree, your attorney can provide legal advice as to how alimony might play into your decision to legally separate from your spouse. Although it is possible to legally separate without hiring a lawyer, to do so is extremely difficult. Not only is the legal process itself often complicated, the emotional ramifications can be overwhelming. The experience can certainly be improved and mistakes avoided by hiring an attorney.