Legal Separation Explained
There is an important distinction between legal separation and divorce that may be unclear to many people. Georgia is one of a minority of states that do not recognize legal separation as a distinct status. For couples who are not quite ready to divorce, but want to separate for other reasons, this is a significant distinction.
Now, a couple in Georgia may live apart on a permanent basis and obtain a court order addressing the issues that couples must resolve as a part of a divorce. In the past, parties may have chosen to live apart indefinitely until one side petitioned for divorce in the future. For example, there are couples who live separately but intend to reconcile or complete debt repayment before filing for divorce. The new provision in the law makes clear that a couple can ask the court to address the issues involved in a divorce immediately upon filing a complaint for divorce.
The process for legal separation includes filing a petition for separate maintenance. Similar to a divorce action , the complaint may address matters such as division of property and debts, custody, child support and alimony. However, you must file and serve a lawsuit in order to address the matters in your petition for separate maintenance. As part of the separate maintenance action, you must serve a summons with the legal complaint. If you have children, the state mandates that the court also serve the Georgia Department of Human Services, to ensure that the interests of the children are protected. Once served, the other party must file a responsive pleading within 30 days, and then the parties can move forward with the case as they would in a divorce proceeding.
Financial Benefits
In Georgia, a legal separation is a court-ordered arrangement between spouses that addresses issues such as child support, property division, spousal support, and debt allocation. It can be a useful alternative to divorce for certain couples. While much of the formal legal framework for legal separation is similar to that of a divorce, legal separation has its own set of advantages – especially financial – that can be beneficial for some couples. The first major financial advantage is in the realm of benefits. Under Georgia law, a legal separation does not alter your marital status. Since your status as a marital partner is unchanged, you are entitled to benefit from whatever health care coverage or other benefits you have through your spouse’s employer or elsewhere. If you are divorced, however, you may lose access to these benefits. The second major advantage is tax benefits. Under the current federal tax code, you cannot jointly file your taxes with your ex-spouse once a divorce is granted. By contrast, a couple may stay legally married for tax purposes even if they are separated. A legal separation can help you minimize tax liability while you finalize your divorce. Thirdly, entering into a legal separation allows you to delineate your financial responsibilities while avoiding the pain of a divorce. This allows couples to continue living together while working out the details of their divorce and without fear of one spouse being held financially responsible for the other spouse’s debt. Depending on your family finances, this could be a viable way to avoid eviction and unnecessary financial turmoil in your life. It is important to remember that a legal separation does not signal the end of your life together. Many of the people who seek legal separation only do so in order to create distance between them, giving them the space and time to work on issues in the relationship. If you want to avoid a complete divorce, a legal separation could provide you and your spouse with a path to follow.
Emotional and Personal Perks
In many cases, legal separation can lead to reconciliation instead of divorce as the parties experience more clarity around their goals. A legal separation can be a period of time that the parties establish separate households and have time apart. This time apart might be what is needed to regain clarity about their relationship. If at the end of the court-ordered time period the parties are still separated, then the court can later convert the separation to a divorce.
One of the key benefits of proceeding with a legal separation over a divorce is that the parties can reduce conflict and hopefully improve communication by having more defined boundaries. When spouses are upset with one another, have elements of a codependent relationship, or are facing transition, oftentimes the relationship can be combative or difficult. A legal separation in Georgia can give the spouses an opportunity to have their forms signaled out in order to move forward peacefully.
Separation does not require any paperwork to be filed in Georgia. If the parties live separately for six months, there is a presumption in Georgia law that the parties will be divorced. After this six-month period of time, a divorce action can be filed and the six months can be waived if both parties consent.
A legal separation in Georgia can provide many benefits to the couple, including an opportunity to clarify expectations, reduce conflict, and evaluate the status of the marriage after a period apart.
Effects on Children and Family
Your children may be among the biggest beneficiaries of legal separation. If you and your spouse are separated but living apart, you may find yourself caught in a number of gray areas when it comes to child custody and support. You may be under pressure to maintain a consistent schedule when it comes to time with each parent, and it can be difficult to make long-term decisions for your children when you’re forced to live apart. A legal separation agreement helps identify the basic terms of the deal between the two parents. Child support and custody arrangements are specified, which gives the parents some breathing room. The terms of the separation agreement serve as a basis for a subsequent divorce settlement agreement. When you file for divorce , your child support and custody arrangements are likely to change, but it’s almost always easier on the children when they have lived with these arrangements in place for a period of time in the first place.
As with divorce, legal separation proceedings can be emotionally and physically stressful on you and your children, but legal proceedings in these cases do tend to move along faster than a divorce. Because many aspects of these arrangements are similar to a divorce, they do involve the disclosure of some sensitive information about marital assets and finances, but they are usually a great way to keep the lines of communication between the parents while transitioning to a more permanent break.
Rights and Protections
Legal separation offers many of the same legal rights and protections during the separation period that are protected in a divorce. Some spouses find it helpful to have property division and provisions for spousal support set for during the separation so everyone is protected from the other spouse’s potentially vindictive behavior. It may be that you and your spouse know the divorce is inevitable, yet want to wait until the kids are out of school or until you have built a financial cushion for just one income.
Many of the issues that may come up during a divorce and be included in the final divorce decree may be addressed and set during a legal separation. Spouses should discuss all issues related to their divorce when considering a legal separation so they have a good understanding of where they may end up after the negotiation or litigation process. This helps the parties come to an agreement if they choose to reconcile, or proceed forward in their divorce knowing that their separation agreement under Georgia law will address the same issues that their ultimate divorce will.
How to Secure a Legal Separation in the State of Georgia
If a spouse no longer wishes to live with a husband or wife, he or she can file a Complaint for Separate Maintenance. This document is different from a divorce. The difference is that the parties remain married. If after a period of time, one of the spouses wishes to negotiate a marital settlement agreement, then the parties have mediation. After the mediation, if the parties agree, then it is presented to the Court and the Court holds a hearing. If the Court determines that the agreement is fair and equitable, then the marital settlement agreement will be signed as a court order. If the parties do not agree , then the case will proceed to a trial.
There are other reasons to file a Complaint for Separate Maintenance when the spouse no longer wishes to reside together, like a spouse wants to keep the other spouse on insurance, but does not want to live together. Sometimes, a spouse wants to file this action to wait out a period of time, like a year, so that that person can file a divorce on the grounds of one year’s separation after that period of time has lapsed. The person can also file a Complaint for Divorce on other grounds, of which there are ten available, including adultery, deserts, violence, addictions, and other grounds.