What Is Legal Separation?
What is Legal Separation?
When a couple who has been married mutually agrees to separate and live apart, it is well within their power to enter into an agreement covering a host of issues. In fact, Georgia law expressly recognizes separation agreements. If one spouse were to file an action for divorce after entering into such an agreement, however, that agreement would have no impact on the proceeding unless both spouses sign it and present it to the Court as part of their divorce case.
Surprisingly, legal separation is not an option in Georgia. While you may hear people talking about "being separated" all the time, in the eyes of the law, separation is just a period of time during which the couple lives apart. In Georgia, if you want to obtain legal separation , you must file for divorce and sign a separation agreement to be enforced by a judge.
The laws in Georgia provide for legal separations only as part of a divorce case. The key to getting legally separated in Georgia is to file for divorce and sign a separation agreement that will be enforced by the judge.
While there are some states that grant legal separation actions, there is none in Georgia. In order to obtain a legal separation you must file for divorce and sign a legal separation agreement with your spouse that will be enforced by the judge in the divorce action.
In many states when a couple mutually agrees to live apart, they can often enter into a legal separation agreement that allows them to live apart and settle issues like child support, custody, alimony, etc. They must be in agreement with each other to do so. In other words, they could physically live apart but not necessarily be legally separated. This is not the case in Georgia. Once parties file for divorce, they must sign a separation agreement that would apply to the divorce case.
Is Legal Separation Allowed in Georgia?
When it comes to divorce in the United States, there are a variety of processes that married couples can choose to either end their marriage or move into a new phase of their relationship. One of these processes is legal separation, which allows couples to live apart from each other for a specific period of time, whether that’s for a few months or as long as a few years.
Many states legally recognize this option. However, whether or not this option is available depends on the state in which you live. In Georgia, legal separation is not legally recognized.
Why the confusion over legal separation in Georgia?
Not everyone understands that the term "separation" holds a special legal meaning in Georgia. When you speak with a divorce attorney about separating from your spouse, the attorney may refer to the period in which you lived apart as a "separation" because you separated from your spouse by moving into another home with the hope that this period apart would allow you to work through your conflicts.
A legal separation is slightly different, though, as it is accomplished by submitting a document called an agreement to separate to the court system. This document outlines all the relevant issues that your divorce would have (such as child custody, property division, child support and alimony) so that — in the event that you cannot reconcile during the period of your separation — you won’t have to go back to court to have those issues decided upon.
Instead, when you file for divorce, you would simply ask the judge to enforce the terms of your separation agreement. For this reason, the term "separation agreement" might be more commonly used to refer to this legal document in Georgia than "legal separation."
If you don’t think you wish to go through the divorce process yet but you are sure that you want to live apart from your spouse, a separation agreement provides a compromise. However, even though separation agreements function as mutually agreed-upon contracts between both spouses, the court still must approve the agreement by recognizing it as a legitimate court order.
Even after the court recognizes the agreement, there’s no guarantee that it will be enforced or that you’ll wish to stay married after the legal separation period. Most people who consider a separation agreement do so because they wish to obtain a no-fault divorce without dividing all their property and issuing all their custodial orders right away. Then, after a specified period with no major conflict, they either decide to get divorced or they fall back into the pattern of behavior that caused their problem.
If you are thinking about separating from your spouse without getting a divorce, speak with an experienced divorce lawyer about how Georgia law can help you accomplish your goal.
Alternatives to Legal Separation in the State of Georgia
A final alternative for your consideration when deciding whether legal separation is appropriate for your circumstances, is the option of voluntarily living separate and apart. There is no Georgia law that recognizes voluntary separation. Parties are free, as a practical matter, to separate and live apart without having to seek the help of the courts. The only limitation would be contractual in nature, such as if the parties are under binding contract to live together, perhaps though a religious covenant. However, even then, it is possible the contract could be able to be equitably set aside by a court of competent jurisdiction.
De facto separation does not confer any special rights or obligations amongst the spouses pursuant to Georgia law. While the parties do need to discuss those things like potential support payments, division of property, etc., these would be done on an informal agreement basis and would only be enforceable to the extent the parties remained together and agreed. When parties enter a Separation Agreement and/or seek a divorce, the parties can enter into a legally binding agreement and have the courts adjudicate any disputed issues, including matters related to the children.
Of course you can voluntarily separate. However, when doing so always stay within the bounds of the law and stay flexible. Although your plans to get back together may be fall through, you should remain respectful and reasonable with your estranged spouse because sometimes there are unforeseen reconciliations that do occur.
Pros and Cons of Legal Separation
In Georgia, pursuing a legal separation has several potential benefits. When a couple decides to pursue a legal separation, they will be legally bound to make certain decisions. Through the legal process, the couple can address critical matters such as child custody, the division of assets, support and visitation. Legal separation allows couples to live apart with binding legal terms. There are also drawbacks of legal separation. It can only be filed in court systems. Since it is not recognized in every state, if the separated couple goes to a state that does not allow it, the laws may not apply . Finally, as the legal process requires a lot of time, expense and energy, legal separation is a lengthy option for couples who are unsure of their future. There are other ways in which couples choose to separate. These alternatives are not regulated by law, and as such, do not involve filing in courts. Instead, the dividing party comes to decisions together. Unfortunately, these sorts of separations may create risks to vulnerable partners, and as such, the divorce laws still apply.
How to Separate in Georgia
Before a married couple with no children can obtain a divorce in Georgia, they have to file for legal separation. The couple must divide their assets, debts, and liabilities and then settle the matter in or out of the court. If you think that your marriage will end in legal separation, it’s wise to learn as much as possible about the legal steps involved.
Georgia statute
To file for legal separation in Georgia, the person must reside in Georgia for at least six months before filing a petition for separate maintenance. The filing person will go to the county or circuit clerk and purchase a Petition for Separate Maintenance and five yellow forms. In some areas, the clerk will sell only the forms and no instructions. In other counties, the clerk will no longer sell forms. As a response to the new fee structure, many people are filing in other counties. If you file in your local county and the clerk does not have the form you could file in another county and bring the form back to your county or go to the state library and find the forms. Some clerks are not accepting the forms from the state law library, and some are. It appears to be if an attorney in town files the forms they will accept them. If a regular citizen tries to file the forms, they do not always accept them. This is a complete violation of the law as the law mandates that they sell the forms. If you are not getting the forms and instructions where you should it is best to call your local probate court and complain when the forms are not being provided.
Filing instructions
The person filing the petition must sign a Verification and a notice of hearing must be filed. Once you have the petition, verification, and notice of hearing filled out, then go to the courthouse and have the documents filed. Once filed, they will send you notice of your court date or the mediator and notice with instructions on what to do in your matter. The clerk will give you an envelope which details the court date and time for the hearing. Some counties have a timer or place a sticker on the paperwork that states "DO NOT FILE IN COURT UNTIL HEARING DATE." The reason is this is that some counties have mediators and you want to enter into the mediation as the first step in the process for the divorce or separate maintenance. Upon filing the separate maintenance petition, the clerk will then schedule the matter for disposition either by a settlement agreement, consent to the separate maintenance, or go to a mediation. Then the clerk will set up a time for the parties to meet with the judge. Once you meet with the judge, then the judge will approve a final decree of separate maintenance. If there are children involved, the parties will most likely have to go the office of child support services for a child support case, and they will need to attend an educational seminar for divorce and/or alternative parenting plan (APP) class. These offices and judges will encourage you to settle by themselves and will not allow you to file for divorce until you have been to those places.
The settlement conference
Your first contact with the judge will typically be at the settlement conference. At the settlement conference, the judge also covers issues involving the education seminar. They will suggest or order the parties to attend an APP class. If you attend the settlement and enter into an agreement with yourself or the mediator you can go ahead and file the paperwork for your divorce after about 30 days. If there is no agreement after the mediation, you cannot file for divorce until you are legally separated. You will have to get a signed order appointing you as interim decision maker, interim guardian as to children, and to approve an interim child support guideline. You will also have to file your financial affidavit. If you cannot reach an agreement and mediation fails with the judge, the judge will give you a trial date in the case that could take place months in the future.
Out-of-state residents
If you were married in Georgia, and return to your home state, there are issues as to obtaining a final decree of attorney. If you get notification from the Attorney General’s office to appear for child support. If you get a notice that the Attorney General’s office will not accept the Agreement, you have to apply for a final decree, or you have to serve the non-resident spouse with your Petition for Separate Maintenance plus the blank General Civil Case Form 6.10A Notice of lis pendens via certified mail return receipt. This is a time-sensitive task, which requires good coordination with the non-resident spouse.
Engage a Family Law Attorney
Consulting a family law attorney is a critical step in understanding your rights under Georgia law and your available options. Do not delay, as knowing your full rights and options will allow for better decisions to be made and a more relaxed and controlled transition. Last but not least , a family law attorney can recommend other good professionals to help you with any other needs you may have. For example, a family law attorney may have good financial advisor or therapist recommendations.