When Should Someone Seek Separation Instead of Divorce?

Couples facing difficulties in their marriage sometimes want to weigh what other options may be available to them other than the permanent (and severe) reality of divorce.

Georgia law fortunately allows for this kind of arrangement, known as legal separation (or “separate maintenance”), and it can carry some of the same obligations that spouses sometimes need from divorce, such as spousal and child support. This arrangement can be beneficial to couples who do not want to get divorced, but would like to live apart.

Divorce ends your marriage and allows you to get remarried (as well as seek spousal and child support, custody, as in separation). There are also procedural differences between divorce and separation: an action for divorce requires that you have lived in Georgia for at least six months, and the defendant does not need to be personally served. For more information on divorce in Georgia, see our section on the topic.

There are some key procedural differences when it comes to filing for separation (or “separate maintenance,” as the courts will often refer to it). For one, you cannot have a pending action for divorce. In addition, the defendant must be personally served, and you must typically file in their county. You also must have lived in Georgia for at least 30 days before filing.

Legal separation does not technically end a marriage, thus although you can live apart (or live in the same residence) and seek spousal and child support, custody, visitation, division of property, etc., as well as maintain certain insurance and other benefits associated with being connected to your spouse, you cannot get remarried while you are separated because your current marriage still exists under the law.

It is possible for both parties to work out a mutual agreement (uncontested) detailing child and spousal support, as well as division of property, etc., and the judge simply approves these decisions. Or, if both parties cannot come to a mutual agreement regarding these details, a hearing is scheduled, where both parties present evidence to make their case. In these circumstances, it is especially important for you to have an experienced attorney representing you because the process can become very complicated.

It is also important to note the similarities and continuity between separation and divorce: any agreement that you sign as part of your legal separation can become the basis for a divorce action, thus the language of such an agreement is crucial and should typically be drafted with the advice of an experienced family law attorney. It is important to come up with an agreement that is going to protect you in the long-haul; this includes addressing such issues as joint checking and savings accounts and any debt your spouse could incur during the separation.

At Edwards & Associates, we are committed to seeking the outcome that is best for you and your family. We will work to achieve these goals through mediation or the legal system, and help guide you on the smoothest path possible through these difficult times.