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Legal separation in Georgia: how separate maintenance works
Summary
Georgia doesn't have a court process called "legal separation." The closest thing is separate maintenance: spouses who are living apart, with no divorce filed, can ask a court for orders on support, the children and other issues while staying married.[1]
A judge can make the same kinds of orders as in a pending divorce, such as custody, child support, alimony and who keeps the home. Property awarded in a separate maintenance judgment generally stays with that spouse even if they divorce later.
You stay married, so neither spouse can remarry. Either spouse can still file for divorce later.
What separate maintenance is
Separate maintenance is a court case for spouses who are living separately and haven't filed for divorce. Either spouse can file, for themselves and for minor or dependent adult children in their custody.[1]
People often call it "legal separation," and many search for that term, but in Georgia the court papers say separate maintenance.
Spouses usually live in separate homes. Georgia courts have recognized separation within one house in some cases, such as separate rooms with no marital relationship, but it depends on the facts, so ask a lawyer if you still share a home.
What a court can order
- Custody and a parenting schedule for the children
- Child support, figured with Georgia's child support guidelines
- Alimony (spousal support), based on need, the ability to pay and the factors in Georgia law. A spouse whose adultery or desertion caused the separation can be barred from receiving it.[2]
- Who stays in the home, and who pays the mortgage, rent and other bills
- The home, other property and responsibility for debts, in many cases
The law lets the judge make any order that could be made while a divorce is pending, and enforce it the same way.[1]
Property and debts usually stay decided
Georgia's court forms for separate maintenance ask the judge to divide the couple's property and debts, and judges commonly do. That decision usually sticks: the Georgia Supreme Court has held that property awarded in a separate maintenance judgment becomes the receiving spouse's own and isn't divided again in a later divorce.[3] Property each spouse acquires after the judgment may also be treated as their own.
How far a court will go depends on the case and how the judgment is written, so ask a lawyer before you agree to terms or ask the court to divide property.
Separate maintenance, living apart, or divorce
- Living apart without a court order: there's no court order to enforce. If one spouse stops paying bills or you disagree about the children, you'd have to go to court first.
- Separate maintenance: a judge's orders are enforceable, and you stay married.
- Divorce: the marriage ends, and either spouse can remarry.
Why people choose it
- Religious or personal beliefs about divorce
- Not being ready to decide, or hoping to reconcile
- Wanting enforceable support and parenting orders while they decide
- Keeping benefits tied to the marriage, where the plan or program allows it
Things to check before you decide
- Health insurance: whether a spouse can stay on the other's employer plan depends on that plan's rules, not just the court order, and a separation decree can end a spouse's eligibility on some plans. Ask the plan.
- Taxes: under federal rules, a spouse who is legally separated under a final decree of separate maintenance by the end of the year is treated as unmarried for that year. Whether a particular Georgia separate maintenance order counts can depend on its wording. Separately, a spouse who lives apart for the last 6 months of the year and keeps up a home for a child may qualify to file as head of household. Ask a tax professional before choosing a filing status.
- Social Security: because you're still married, the years keep counting toward the 10 years of marriage an ex-spouse generally needs to claim benefits on the other's record after a divorce.
- Records: depending on how the judgment is written, property awarded in it, and property acquired after it, may not be divided in a later divorce. Keep copies of the judgment and your financial records.
How to file
- File a petition for separate maintenance with the Superior Court clerk, usually in the county where the other spouse lives, and pay the filing fee. If you can't afford it, you can ask to file without paying.[4]
- The other spouse must be served with the papers, or sign an acknowledgment of service.
- When support or property is at issue, each spouse usually fills out a Domestic Relations Financial Affidavit.[5]
- If you have children, expect to provide a parenting plan and a child support worksheet, and the court may require a parenting seminar.
- The judge can hold a hearing on as little as 3 days' notice to the other spouse,[1] or approve a written agreement if you agree on the terms.
Georgia's 6-month residency rule is written for divorce, and Georgia's Supreme Court has said it doesn't apply to alimony-only cases.[6] But the court must have authority over your spouse to order support, and for custody, Georgia generally must be the children's home state, which usually means they've lived here 6 months. Ask the clerk or a lawyer.
If you reconcile
If you get back together and live together again as a married couple, the permanent alimony parts of the order generally end. Child support and property already awarded don't.[7]
If you later decide to divorce
Either spouse can file for divorce at any time. Georgia doesn't require a period of separation first. Once a divorce is filed, the separate maintenance case is put on hold. Its support orders generally stay in effect until the divorce judge rules on temporary support, and then the divorce court's orders take over.[1]
Property already awarded in the separate maintenance judgment generally isn't divided again. The divorce court decides the other issues, and the final divorce decree replaces the separate maintenance orders.
If you don't feel safe
Separate maintenance isn't a protective order. If you're in danger right now, call 911. Georgia's statewide domestic violence hotline is 1-800-334-2836. An advocate can help you make a safety plan and ask the court for a protective order.
Questions you might ask a lawyer
- Is separate maintenance or divorce a better fit for our situation?
- What could a judge order about support, the children and our property in our case?
- If we divorce later, which parts of a separate maintenance judgment would stay settled?
- Should we put our terms in a written agreement?
- How would it affect my health insurance, taxes and benefits?
Common questions
Is there legal separation in Georgia?
Not by that name. Georgia's closest equivalent is separate maintenance, where spouses living apart can get court orders on custody, child support, alimony and other issues while staying married.[1]
Do you have to be separated before getting a divorce in Georgia?
No. Georgia doesn't require a separation period before a divorce. On the usual no-fault ground, a divorce can't be granted sooner than 30 days after the other spouse is served.[8]
Can we file taxes jointly while separated in Georgia?
Spouses who are separated without a final decree are generally still married for tax purposes and can file jointly. A final decree of separate maintenance can change that, depending on its wording. Ask a tax professional.
Can I stay on my spouse's health insurance if we're separated?
Possibly, because you're still married, but it depends on the plan's own rules, and a separation decree can end eligibility on some plans. Check with the plan before you rely on it.
Does separate maintenance divide property in Georgia?
It can. A judge can award property and assign debts in separate maintenance, and property awarded in the final judgment generally stays with that spouse even if you divorce later. Ask a lawyer how it applies to you.
Sources
- ^ O.C.G.A. § 19-6-10, separate maintenance (Justia)
- ^ O.C.G.A. § 19-6-1, alimony and conduct of the spouses (Justia)
- ^ Goodman v. Goodman (Ga. 1985), property awarded in separate maintenance (Justia)
- ^ O.C.G.A. § 9-15-2, filing without paying fees (FindLaw)
- ^ Uniform Superior Court Rule 24.2, financial affidavit
- ^ O.C.G.A. § 19-5-2, residence requirements (Justia)
- ^ O.C.G.A. § 19-6-12, effect of reconciliation on alimony (Justia)
- ^ O.C.G.A. § 19-5-3, grounds for divorce and the 30-day rule (FindLaw)
- Southern Judicial Circuit, separate maintenance packet with children (PDF)
- IRS Publication 504, Divorced or Separated Individuals
- Social Security Administration, benefits for divorced spouses
- Georgia Commission on Family Violence, statewide hotline
Laws and court rules change. If something here looks out of date, email help@divorce.city.