Negotiated Separation

The Difference Between Divorce and Separation in Georgia

Our clients often come to us looking for the best way to separate from their spouse.  Some of them know that they want and need a divorce – a full legal dissolution of the marital relationship. Others feel that they need some clarity about finances or the children and are seeking a way to redraw some personal and financial boundaries without getting a divorce.

In Georgia You Can’t be Married (but Separated)

In Georgia, even if you and your spouse do not live together, never had or no longer have minor children or do not rely on each other for support, you are still considered to be legally married.  That is because Georgia law does not recognize you and your spouse to be “separated” or “legally separated” based solely on actions taken by you and your spouse.  So long as you are legally married, all income earned and debts incurred by each spouse continue to be marital income and debts under the law.  And, if you have minor children, each parent is still presumed to have a duty to support those children.

If you and your spouse consider yourselves to be “separated” or are actually living separate lives, you should consider the pros and cons of filing for divorce or filing for separate maintenance so your legal relationship reflects the reality of your actual relationship.

Divorce: Complete Dissolution of the Marital Relationship

Divorce is a complete dissolution of the marital relationship.  At the end of your divorce process, the Court will enter a Final Judgment and Decree of Divorce which will contain words similar to these:

It is considered, ordered, and decreed by the Court that the marriage contract entered into between the parties to this case, from and after this date, be and is set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into.

Petitioner and Respondent in the future shall be held and considered as separate and distinct persons altogether unconnected by any nuptial union or civil contract, whatsoever, and both shall have the right to remarry.

If you and your spouse have minor children together you will continue to have a co-parenting relationship with each other so you will continue to have certain rights and responsibilities with respect to each other because you are parents.

You can learn all about what happens in a Georgia divorce and see how a Georgia litigation works HERE.

There are alternatives to divorce, however, and they could be the right answer in your situation.

What is separate maintenance?

Separate maintenance is a legal action which, like a divorce, can be sought by one party (a contested action) or agreed to by both parties (an uncontested action). 

PRACTICAL TIP: If one spouse files for Separate Maintenance and the other spouse responds with a claim for divorce, the case automatically becomes a divorce case. Practically, this means that seeking separate maintenance requires some level of cooperation and agreement that a divorce is not the goal.

Just as in divorce, the parties to a separate maintenance action will have an opportunity to resolve all issues of marital property division, alimony, child support and child custody.  Although you will still be legally married at end of your separate maintenance case, you and your spouse will be able to live separate lives, be free from interference from the other, be responsible for your own finances.

There are a few rules governing when the court can enter an order for separate maintenance.  

  1. You and your spouse must be married.  You cannot just be living together – even if you have had children together.
  2. You and your spouse must be living in a bona fide state of separation. Under Georgia law, marital “separation” means that the parties are not engaging in sexual relations.  This separation may be due to an agreement between the parties or due to misconduct on the part of one of the parties, like adultery.
  3. There cannot be a pending divorce case between you and your spouse. A pending action for divorce, regardless of whether it is filed before or after the separate maintenance case, will supersede any action for separate maintenance.

Divorce and separate maintenance are similar in all important aspects, so why would you choose separate maintenance instead of divorce?

Some couples simply are not ready to be legally divorced or they hope to reconcile in the future, but they want to set boundaries around financial decisions or support or child custody, so they opt for separate maintenance.

Other couples choose to remain married because total divorce is culturally or religiously unacceptable to them or to their families.

In some instances, one spouse needs to remain covered on their spouse’s health insurance, and separate maintenance makes that possible.

Separate maintenance can also allow you to delay your divorce so one spouse can meet the 10-year marriage requirement for social security benefits.  If married 10 or more years (which includes the time after your separate maintenance order is entered by the court), a divorced spouse may be entitled to social security benefits equal to the greater of: 1) benefits based on his or her work history, or 2) 50% the benefits earned based on the ex-spouse’s work history if it is greater than their own; or 3) 100% of the former spouse’s benefit if the spouse is deceased.  It is important to note that calculating one spouse’s entitlement to benefits based on the other spouse’s earnings does not reduce the benefits the other spouse will eventually receive – the other spouse’s earnings are used for reference only.

How does divorce and separate maintenance compare?
Separate MaintenanceDivorce
Equitably Divide Marital Property and Debts
Alimony
Child Custody
Parenting Time
Child Support
Restore Maiden Name
Can Remarry
Can Stay on Spouse's Health Insurance
Can Meet 10-Year Marriage Requirement for Social Security Benefits

We Aren’t Ready to Divorce. Can We Just Make A Post-Nuptial Agreement Instead?

The short answer is Yes.  In Georgia, you and your spouse can enter a post nuptial agreement (a contract after marriage) which details how your marital assets and debts will be divided if you divorce.  A post nuptial agreement cannot set out a parenting plan or determine child support because those issues are subject to the Court determining what is in the best interests of the child or children.

If you do divorce, a Court will accept the terms of your agreement only if that agreement is determined to be enforceable.  Post nuptial agreements are generally enforceable if (1) the agreement of the other party was not obtained through fraud, duress or mistake, or through misrepresentation or non-disclosure of material facts, (2) is the agreement not unconscionable, and (3) the facts and circumstances since execution have not changed so as to make enforcement unfair and unreasonable.  

Either spouse may submit the post nuptial agreement to the Court and ask the Court to enforce the terms of the agreement by dividing the parties’ marital assets and debt and ordering alimony as provided in the agreement.  The party seeking to enforce the agreement has the burden of proof.

Can I Get My Marriage Annulled?

Grounds For Annulment In Georgia

Annulments are rare in Georgia and require you to present facts to the Court that prove your marriage was void at the time it was entered into.  You cannot seek an annulment if you and your spouse have had children or are expecting a child.  If you have children you must seek a divorce or separate maintenance.

Marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void.

UNABLE TO CONTRACT

In order to enter into a valid marriage in Georgia both parties must

  • be of sound mind;
  • be at least 18 years of age;
  • have no living spouse of a previous undissolved marriage; and
  • not be related to the prospective spouse by blood or marriage within the prohibited degrees.

A court can determine that your marriage was void if you were legally unable to contract at the time you were married because you or your spouse failed to satisfy one of the requirements above.

UNWILLING TO CONTRACT

A court can determine that your marriage was void if you were forced or coerced into getting married.

FRAUDULENTLY INDUCED INTO MARRIAGE

A court can determine that your marriage was void if your spouse fraudulently induced you to marry them by lying to you about a material fact on which you relied when entering the marriage contract.  For example, one spouse lied to other about their inability to have children.