Legal Separation in Georgia Versus Divorce
In Georgia, the process of legal separation is often misunderstood. Most clients have no idea that it is a legal and binding relationship. Most clients are unaware that they can draft a separation agreement, which is an enforceable and binding document.
A separation agreement addresses property division, alimony (if any), child custody, child support, health insurance issues and all of the other issues that are typically involved in a divorce. Sometimes this document is referred to as a Marital Settlement Agreement.
Some people separate in order to evaluate their options. Others live separately for a period of time to determine if the marriage can be saved. Most people, however , separate with the intent to divorce.
We recently completed a trial wherein the parties had been living separately for almost eight years. Many people call this a legal separation. It is not. They were simply living apart and could have called themselves single. The woman in the case said that she stayed married to protect her husband’s pension benefits. Thus, there was no reason to legally separate or file for legal separation.
If you are separated with the intent to have a legal separation, then you need a separation agreement. If you are separated with the intent to divorce, then you need to file for divorce and get a Divorce Decree.
The obvious difference is that timesharing either exists or does not exist. The other difference is that you are legally still married in a legal separation. Again, you are not legally married if you are divorced or single. In Georgia, it is important to talk to your attorney about how separation agreements work and the enforceability of those agreements.
Who Can File for Legal Separation in Georgia?
Couples must meet certain requirements to be eligible for legal separation in Georgia. First and foremost, you need to be legally married, and at least one of the spouses must meet state residency requirements. According to Official Code of Georgia Annotated Section 19-5-4, the residency requirement states that either spouse must reside in the state for at least six months immediately before filing for legal separation – which is not the same as living in the state for a continuous six-month period prior to filing. Presence means establishing domicile in the state, which is based on where you have the closest connections — things such as your job, family or place of permanent residence. The concept of being "in a state of separation" is not the same as being physically separated from your spouse, nor do you need to make any formal arrangements to live separately. All that is required is for the spouses to have stopped living together as a married couple and have resumed separate lives:
Process for Filing a Legal Separation in Georgia
To file for legal separation in Georgia, you must go through the same process as divorce. The primary difference is that the Complaint does not have to be based on "irretrievable failure." The primary steps in filing for legal separation in Georgia are:
Filing the Complaint
Filing for a legal separation starts by filing a Complaint with the Superior Court Clerk’s office in your county of residence. This is a fairly straightforward process, but it does require payment of the filing fees. For instance, if you are divorcing, the filing fee depends on the county and is usually in the $250-$350 range.
In some cases, the filing fee may be waived if the spouse can provide evidence they cannot afford to pay the fee. In this case, the spouse will complete an Affidavit of Poverty, which outlines the family’s assets and income, as well as their expenses. Upon a successful appeal to have the costs waived, the Complaint can be filed without the payment of a fee.
Consent for Divorce Agreement
After filing the Complaint with the family law division of the Superior Court, spouses should then prepare a proposed consent agreement. If you and your spouse have settled all issues in the case, the consent agreement can generally outline the settlement terms. Spouses then submit the consent agreement to the court with an appropriate Order for the judge to sign, along with any required fees.
A consent agreement can also be used if your spouse has not yet filed a response to the Complaint – essentially a response to your divorce. The consent agreement allows you and your spouse to act in good faith to finalize the divorce or separation without objection from the judge. This generally involves submitting the Judgment or Order along with your Consent Agreement for the judge’s signature. Your spouse must file the Consent Agreement with the court within 30 days after their receipt of the Complaint, unless they have filed a waiver or entered an appearance to consent to the terms without needing a hearing. If your spouse fails to file their Consent Agreement, a divorce hearing will still be necessary. The court or the attorney for the plaintiff spouse will submit a motion asking the court to grant a divorce and adopt the proposed settlement terms. If neither party appears, a hearing may be necessary to resolve contested issues.
Obtaining a Final Divorce Order
In order to finalize the separation, an uncontested hearing is requested. The judge should approve consent agreement terms granting the divorce. In a contested case, a judge will evaluate evidence and issue a decision at the end of the hearing. An order may then be drafted by a party or the attorney for the other party after the judge makes their findings. When there is no objection to the order, the court will grant it. If there is an objection, the order will be sent to the opposing party’s attorney or to the pro se litigant for review. If neither side files an objection, the draft order will be automatically entered after 30 days.
How to Draft a Separation Agreement
Separation agreements are important in any action for separate maintenance. These documents set out the terms of settlement between the parties. Without a separation agreement, if a couple later does divorce, the standards utilized by a judge in making rulings in the final case might differ from the terms to which the husband and wife agreed in the separation agreement. In addition, when an agreement is incorporated into a court order, it becomes binding on both parties; when a court order is made (and it contains terms that differ from the terms in the separation agreement), the judge’s decision will control regardless of what the parties previously agreed. If the separation agreement is not put into a court order or otherwise legally memorialized, neither party has an obligation to enforce its terms.
A typical separation agreement addresses issues such as child custody, child support, visitation, medical insurance, health care expenses, school costs, and life insurance. Other terms to be included should involve property or income division, investment rights or schedules, and tax consequences. Finally, the couple will want to decide whether to have alimony.
Separation agreements are particularly important in determining whether a party receiving alimony is a "dependent spouse." In Georgia, alimony terminates once one of three things occurs: the parties reconcile, the receiving spouse remarries, or one of the parties dies. However, if the recipient of alimony were to move away from his or her primary residence, the other spouse could use this fact to terminate alimony in the future.
Legal Representation and Support
When legal separation becomes a necessity, especially when children are involved, it’s often preferable to seek the assistance of an attorney in navigating the process. A qualified lawyer can help provide you with the information you need, as well as draft necessary agreements, negotiate terms with your estranged spouse, and intervene with your spouse’s attorney to assist in reaching a satisfactory outcome and required contracts are reduced to writing as formal agreements . If your spouse is represented, communication is often through their attorney.
Some of the important components to separation agreements that must be negotiated include the following:
a. child custody arrangements;
b. child support;
c. spousal support/alimony;
d. property division;
e. debt division; and
f. division or possession of the home.
A clear understanding of what is entitled typically enables the parties to negotiate in good faith to reach a mutually acceptable agreement that is in the best interests of the children.
Child Custody and Support During Legal Separation
When it comes to child custody and support, a legal separation does not have a different legal impact from a divorce. The same factors will be assessed in both situations, with the best interests of the child serving as the primary consideration. As is the case in a divorce, the mother and father of the child will be required to reach resolutions regarding each aspect of child custody. It is important to note that a judge will issue a final order in all matters of child custody. Until this time, the agreement between parents is typically only temporary.
Child support is another area where there is no difference between a legal separation and a divorce. Instead, the same guidelines for child support are used regardless of whether the parties have separated legally or divorced. The judge in the case will typically set the child support amount based on the guidelines. Specific provisions may or may not be included in the final order. For instance, the child support order may include a provision making the payment obligation less if the child lives with one parent for a longer period of time.
Common FAQs on Legal Separation in Georgia
How long does a legal separation last?
If you are legally separated, the separation will last indefinitely under Georgia law. The separation will continue until either a divorce action is initiated by one of you or the period has expired under a written agreement. While the law does not state the length that a separation should be, the courts want to ensure that there is sufficient time for the parties to discern whether reconciliation is possible and given sufficient time for parties to resolve issues before bringing further litigation.
What happens if we reconcile?
Your legal separation agreement will control the relationship between you and your spouse after a reconciliation. Unfortunately, Georgia does not have a mechanism to lift a legal separation once it is filed with the court. That is to say that the court will not have jurisdiction to enter an order to dissolve the legal separation without some additional action or agreement from the parties. If in your reconciliation you decide to go back to living together, your reconciled relationship is still controlled by the terms of your separation agreement. If there are issues in your separation agreement that you now wish you had bargained differently, the separation agreement can be amended by the consent of both you and your spouse , but absent the consent of both it can only be amended with the permission of the court.
What happens if we separate again?
If you reconcile and then separate, you do not have to obtain a new legal separation. You will be able to use the same legal separation that you obtained previously. However, you cannot make changes to the same legal separation agreement unless both you and your spouse agree to the changes. If you and your spouse agree to the changes in your separation agreement, the same procedure applies as if you were drafting an original agreement. You will need to negotiate the changes that you wish to make, then draft a new separation agreement and sign it in front of a notary. You can then file the separation agreement with the court. It is important to remember however that you will still be bound by the terms of the new separation agreement and its impact on your case for divorce.
How much does it cost to get a legal separation in Georgia?
The fees for a legal separation are similar to those of filing for divorce. Since your separation is a separate case, you will have to pay another filing fee for your separation. In addition, you will have to pay an additional fee for serving your spouse with the papers. As a result, the legal fees will most likely be somewhere between $2000 to $4000 depending on the use of an attorney in preparing the paperwork and how difficult the case ends up being.