Legal Separation or Divorce in Georgia
Legal separation in Georgia is a legal proceeding, where the couple is still married, but, with a "programmatic" disassociation. In this regard, it is arguably similar to divorce, in that both proceedings purport to divide property, and make decisions regarding children. However, there are both qualitative and quantitative differences in those proceedings, which can be explained by the difference in the purpose of such forms of action. The divorce proceeding is the mechanism provided by statute for terminating the marriage. The legal separation proceeding is merely a contract between the parties vesting their rights and obligations relative to the division of marital property and child custody. A divorce terminates a marriage; a legal separation terminates nothing. A divorce disassociates the parties completely. There are no obligations owed to one another once the action is completed, with the exception of the contractual obligations of divorce law, where the parties may either renounce them based upon the terms of a settlement agreement or a judge entering an order upon the record.
In divorces, in the event that one party disagrees, they may obtain attorney representation, make custody claims, make property claims, and seek implementation of the same via an order after hearing that makes the claims, and imposes them upon the other spouse. In a legal separation, no one has any substantive rights, unless they agree to such, and enter into a contract known as a "separation agreement." In a legal separation, the parties may invoke the judicial process, seek the appointment of a Temporary Judge, have a hearing, and the Temporary Judge can issue orders, but no divorce has occurred, and thus the Temporary Judge’s orders must be consented by the parties, or else are unenforceable.
In legal separation, the parties may not defect into unconsentable judicial orders, as they can in a divorce (upon a finding of domestic violence), or as they can under the terms of a family violence protective order . Ordinarily in a divorce proceeding, a contested divorces involve the issuance of Temporary Orders, Interim Orders, and Final Orders of Divorce. When a party enters into a divorce pleading wherein they request marital property and custody matters to be addressed by the Court, they are relatively bound by the outcome. In other words, when a judge proceeds to hear a contested case, that judge may in fact "take jurisdiction" of a matter. A judge is bound to make orders in contested cases. In contrast, in a legal separation proceeding, a person essentially looms over the possibility of bringing their own lawsuit for breach of contract, aside from the somewhat speculative possibility that a judge might impose his unofficial substantive rulings, so to speak. Or divorces, once conversion is had, the matter proceeds to a divorce action per se.
Nonetheless, in a legal separation context, should a judge vest himself/herself into the order, the parties can ordain, via consent, what the contracts are to be.
As a result, legal separation contracts are somewhat common in Georgia, though will eventually result in a divorce action being filed. In fact, in most situations, it is fair to state that 99% of legal separations blossom into divorces. And if a legal separation is filed, then a divorce action is going to be filed soon thereafter once one party complains, court assistance is sought, and one or both parties get attorney representation, and a contract is breached.
Because of the dissimilar nature of the proceedings, legal separation contracts are generally made simple, in that they reflect each party’ property rights, indicate which will remain in possession of items in their possession and custody, may address custody in a cooperative sense (if the parties are agreeable to thie separation), and indicate that the parties have no other rights to property, and that they hope for the best in all other matters. These contracts are seldom complex, however divorce contracts are pro-ceptive in nature, and tend to be far more intricate and cumbersome, as they are divisible property judgments giving rise to obligations, not simple contracts.
Separation Process Under the Law in Georgia
The laws in Georgia do not provide for a "legal separation". Some states have a process to obtain a judicial decree that incorporates the division of assets and debts and, sometimes, child custody and child support agreements. Georgia does not have such a process – and for the most part Georgia is not a community property state where assets automatically become community property if the parties remain married for a specified period of time. In our law firm we often see spouses ask for "legal separation" in order to divide assets and debts as abovesaid, and also in order to allow one or both spouses to seek a divorce on grounds of desertion or some other ground. Such "spouse’s remedy" is no longer recognized in Georgia. Georgia law does not require a spouse to file for divorce (so long as there is a specific intent to remain married) in order to have a right to equitable division of property between spouses. However, we often recommend that if a party wants to be assured that they will receive the equity that their spouse has in a home or other property that is in joint names that it is better to actually file an action for divorce than attempting to accomplish this by separation (with a written agreement).
Generally, the way for one spouse to deprive the other of their interest in property in Georgia is the following: first, encumber the property by refinancing or mortgaging so that there is little or no equity for the non-owning spouse; secondly, liquidate the property by selling assets and converting the property into cash, and then purchasing additional property in joint names; and finally, convert the cash into gift certificates, credit card charges, or liabilities of the single spouse. The problem with this plan is that if there was an agreement between the parties prior to their separation for all assets and debts to be jointly divided, it enhances the prospect for the non-owning spouse to overturn such actions. Parties can become jealous that assets they thought were jointly owned are leaving the family or community and then attempt to "move such assets into safekeeping." Obtaining an account in both names which reflects a non-owning spouse’s interest and which is a "meeting of the minds" can override a unilateral ownership claim on the part of the single spouse.
Furthermore, Georgia law does provide for certain presumptions regarding the exclusive rights of one spouse with regard to disposition of marital property. For example, "neither spouse has the power to convey or encumber an interest in real property or a tangible or movable asset without the other spouse’s consent, except as otherwise authorized or provided by law". O.C.G.A. ยง 19-3-8. Furthermore, a "security deed" of any immovable property executed by one spouse during the marriage shall not be valid and the property cannot be sold at mortgage foreclosure (or tax foreclosure) without the signature and consent of the other spouse.
Advantages to Legal Separation
While divorce is the more common choice among those leaving their spouse, many couples are unaware that there is an alternative. In Georgia, legally separating can allow you to retain the benefits of marriage without the full complications and financial obligations of divorce.
Like a divorce, legal separation involves deciding how your property and finances will be divided in the future, and involves alimony and child related issues. However, unlike divorce, legal separation maintains the union between you and your spouse. If you cannot obtain an unconditional divorce on the basis of irreconcilable differences in Georgia, then legal separation may be a great option for your family.
A legal separation allows you to receive some of the benefits of divorce without the benefits. Those benefits include:
- Fewer costs than a divorce
- A chance to avoid, for the time being, the emotional distress of divorce
- A way to live apart and avoid the social stigma of living with someone you no longer want to be with
- Access to your spouse’s health insurance and other benefits
- The opportunity to show the Court the parties have a chance of reconciliation and therefore a chance of being reunited with few, if any, financial obligations between the parties that would limit the financial recovery of each during divorce proceedings.
Rights and Obligations In a Separation
A legal separation in Georgia is a declaration that the parties to the marriage do not wish to live with each other, rather than a statement that they are divorced. The only major difference between a divorce and legal separation is that a couple legally separates because they want to remain married, while a couple who is divorcing acknowledges that their marriage is over. The law in Georgia does not view legal separation any differently from a divorce. A divorce is a decree of dissolution of the marriage and forms the basis for ending the marital relationship.
Just as in a divorce, domestic relations law applies to legal separation. Property division, child custody and spousal support are all a part of the separation process, if the parties have reached an agreement on how to divide marital property or else a court will intervene to make those determinations.
To be clear, legal separations are not necessarily formal arrangements. Some couples simply choose to live apart while agreeing on how to manage their finances and dedicate parenting roles. This situation leaves open the possibility of winning back an estranged spouse . Even if the parties agree to separate without court involvement, legal enforcement of terms is not possible and there are no guarantees about what the future will hold.
Establishing a legal separation is a form of filing for divorce in Georgia. The only difference is that a legal separation requires the filing of a Complaint for Separate Maintenance instead of a Complaint for Divorce. Much like the divorce process, the separation filing gives the petitioner the opportunity to ask a judge to grant other requests, such as dividing property and making parental decisions.
Once filed, the couple (now legally separated) goes through a similar legal process as a divorce. A judge assesses factors the same way as a divorce case, making determinations of property division, spousal support and child custody. The court can issue orders of temporary support to apply while the separation details are pending.
In Georgia, separate maintenance is essentially a divorce that does not dissolve the marriage. The same benefits and burden apply as in a divorce. Petitioner spouse asks the judge to take certain action to protect his or her rights to asset division, child custody, and spousal support.
Moving From Separation To Divorce
Applicable Law
If you and your spouse are legally, physically, separated, with the intention to seek divorce at your earliest convenience, you should contact an attorney to facilitate the transition from separate to divorce proceeding. Your attorney will be able to explain matters such as if the separation agreement can supplement the divorce action or if you should wait until the divorce action is filed to address matters such as child support, alimony, and division of property.
To formally end the marriage, the parties will need to file a divorce petition in court. Any agreements regarding property division will need to be incorporated into the petition. If one party is responsible for family debts, or other obligations and the other party agrees to be responsible, the plaintiff should list that party as responsible for those obligations. If there are temporary orders in place such as child custody or child support, you may want to give the court the authority to extend those orders until the divorce is final.
If there are no children of the marriage and it is uncontested, the process can be fairly straightforward. It takes between 30-90 days for a divorce to be finalized, depending on whether there are any issues in the case. If there are children, the process is more complicated. If you and your spouse do not agree to all the issues, the process will take longer, in some cases, up to a year or more, depending on the willingness of the parties to resolve the issue. Mediation may be required.
Separation Legal Counseling and Representation
When pursuing a legal separation in Georgia, seeking skilled legal advice and representation can help protect your rights and maximize your opportunities in your legal separation. Your Atlanta divorce lawyer will also help you safeguard your rights to property, assets, and children. Your Atlanta family lawyer will guide you in the following issues of legal separation:
Your attorney will also help you in drafting and filing legal separation papers that safeguard your best interests and help you work towards a successful divorce . If your child is involved, your attorney will help you in protecting your child’s interests, as well. This is a process that requires extensive preparation, documentation, and the right legal knowledge – why it is so important to seek legal counsel when drafting legal separation papers. If your spouse or partner has filed legal separation papers against you or your child, your attorney will act on your behalf and protect your rights (and your children’s rights) during separation, divorce, and thereafter.