What Is Legal Separation

What is legal separation in the state of Georgia? The truth is the legal system does not recognize legal separation in this state. Instead, our courts recognize “separate maintenance”. Separate maintenance is the separation of spouses without the marriage being dissolved or legally terminated. This can happen when you are no longer engaging in marital relations with your spouse and consider yourself to be in an active state of separation. This can even be true if you are still living in the same household.

The process for reaching this state of separation or “separation maintenance,” is as follows:

  • Marital relations have ended. While you may still live in the same house, you cannot share the same bed.
  • You are preparing for divorce.
  • While you may not have a court-recognized “legal separation,” you will need to swear that you are in a true state of separation; after doing this, the court can grant the order for separate maintenance.
  • Separate maintenance is a lawsuit you will need to file to address all issues related to a divorce case—except for the actual divorce decree.
  • Issues covered in separate maintenance cases include child custody, child support and alimony.
  • In separate maintenance, your marriage is still legal. However, you will not be responsible for each other. Therefore, it is important to note that you cannot remarry when in a state of separate maintenance.
  • Following separate maintenance, you will need to move forward with a divorce if you still wish to dissolve the marriage.

Why Choose Separate Maintenance instead of Divorce?

There are certain scenarios in which the separation is preferred over divorce. For example, if you or your spouse do not meet the state of Georgia’s residency requirement, which states you need to live there for six months prior to the divorce, separate maintenance will allow you to be apart legally until you can divorce.

Another example would be if one of the parties still needs health insurance or financial support through the other spouse—separate maintenance will provide for these supports, while a legal divorce will not.

How to Get a Separate Maintenance

In the state of Georgia, to get a separate maintenance, you must have a valid marriage. You must also reside in a state of separation—meaning no marital relations. Additionally, the filing spouse must personally serve the non-filing spouse with the separate maintenance documents. If the other spouse cannot be personally-served, the filing spouse will need to get a divorce instead.

You will file for separate maintenance in the county of the defendant’s residence. However, if neither spouse contests the case, the parties can file it in the county of either party’s residence.

You may not have to go to court for a separate maintenance if you and your spouse agree to the terms and the courts consider it an uncontested separation. If either party contests the separation, the judge will make the decisions, which will likely mean a day in court.

You don’t have to find answers about what is legal separation on your own. Contact one of our family law attorneys in Alpharetta now and get help.