Crystal Wright | April 14, 2022 | Legal Separation
Strictly speaking, Georgia law does not recognize a formal legal separation. It does, however, provide actions for “separate maintenance.” A couple who files for separate maintenance can remain separated indefinitely, or a spouse can file for divorce at some point. Continue reading to learn more.
Why Not Just Divorce?
There are several common reasons couples seek separate maintenance rather than outright divorce, including:
- They have not yet decided to divorce, but they wish to pave the way for a future divorce, should it become necessary;
- Their religious principles forbid divorce;
- One spouse is receiving medical coverage through the other spouse’s employer (some insurance companies will terminate coverage based on separate maintenance, however);
- They want to remain married for the sake of their children
- Financial security
Resolving issues such as child custody, child support, and alimony in a separate maintenance action can save a lot of time and money if you decide to divorce later.
How Does the Separate Maintenance Process Work in Georgia?
The procedure for obtaining separate maintenance is as follows:
- You must be in a “bona fide state of separation.” Although there is no formal minimum duration of the separation, many lawyers recommend at least 30 days.
- One spouse must petition the family court for an order of separate maintenance in the county where the other spouse resides.
- You must prove that you are legally married.
- There must be no divorce action pending.
- The petitioning spouse must have arranged for personal service of process to the other spouse. Normally, this means that a third party has personally delivered the paperwork to the other spouse, notifying them of the separate maintenance action and the date of any scheduled court hearing. Notification by mail or by publication is insufficient.
- The court may demand evidence of a financial disparity between the spouses, which is what justifies the “maintenance” of the lower-earning spouse.
- You should file a separation agreement detailing the spouses’ resolution of issues such as child custody, child support, and alimony. If you and your spouse cannot agree, ask the court to resolve these issues for you. Even if you agree, the judge might overrule you based on concerns such as the “best interests of the child.”
- If any disagreements remain, the court will hold a hearing where both spouses can argue their positions.
- The judge will sign the separation agreement or compose the terms of the separate maintenance order themselves. This will become a court order with legal authority.
If you have any questions about the separate maintenance process, contact an experienced Georgia family law attorney for help.
A “Bona Fide State of Separation”
The spouses must be in a bona fide state of separation when either spouse files the petition for separate maintenance. However, there is no requirement that one spouse physically moves out of the marital residence. You simply need to suspend your “marital relations.”
Marital relations include the company, cooperation, assistance, and the emotional and sexual intimacy of the other spouse. Obviously, moving to another residence, or at least to another bedroom, is more likely to persuade a judge that you have actually suspended marital relations.
What Should Be Included in the Separation Agreement?
A separation agreement dictates the terms of your separation and outlines how you will handle various family issues.
A separation agreement should address issues such as:
- The beginning date of the marital separation
- Child custody
- Child support
- The treatment of marital property such as bank accounts, the marital home, vehicles, etc.
- The division of any post-separation income and debts in the event of divorce (whether one spouse will bear liability for post-separation debts that the other spouse generates, for example)
If the spouses cannot agree to the terms, a judge may resolve the issues for them.
Contact the Legal Separation Lawyers at Crystal Wright Law To Get Legal Assistance Today
You can also visit our law firm at 440 S. Perry Street Suite 105, Lawrenceville, GA 30046.