A How-To Guide on Legal Separation in Georgia

Legal Separation Process in Georgia

Unlike some other states, Georgia does not have a formal process for legal separation. A legal separation in Georgia is not defined under the law, but it’s primarily an agreement made between a husband and wife. In some cases, one spouse may consider legal separation as a "cooling off" period before a divorce. Generally speaking, some couples may want to get a legal separation because they don’t want to officially get divorced for some reason or another. In the past, legal separations were more common as the Church used to not allow for a civil divorce. As such, getting legally separated allowed for a spouse to live separately while still being married. In Georgia, legal separations aren’t very common anymore; most people choose to represent themselves, or get a competent lawyer, and simply file for divorce.
To get a divorce legally started in Georgia, one spouse has to file a "complaint," which is followed by a process where the other spouse has to "answer." At that point, if both spouses can agree on everything, they can file a "consent order," and the divorce becomes final. When filing a complaint for divorce in Georgia, you have to fulfill several requirements. You, or the spouse filing the complaint, has to be a resident of the State of Georgia for at least six months. Additionally, the only reasons for getting a divorce in Georgia are the following: the two spouses have to be "estranged , " meaning at least one spouse has left the marital home and now lives separately and there are no chances of reconciliation. The estrangement period in Georgia is only a minimum of 30 days, so if one spouse lived apart from the other under the same roof, the estrangement period counts even if they may have not been privy to the location of their spouse. This can also include spouses who have not been together for a year due to military service.
Since Georgia doesn’t have a process for legal separation, the legal separation often happens at the same time as the divorce process. During the filing of the divorce complaint by a spouse in Georgia, a "Request for Separate Trial" or "Consent Order" can be requested — this can consolidate the divorce process and legal separation into one motion through the action of the divorce process. While most people understand that legal separation in Georgia is not considered a "legal remedy," you should also remember that the legal separation can be just as important as a divorce. For example, let’s say that you live in Cobb County, and your spouse has removed your children and lived in Forsyth County. In all likelihood, a divorce action would be initiated in Forsyth County, and nothing much can be done legally about that since your spouse would have moved to that county anyway. However, for legal separation, the place of trial for your legal separation would be in Cobb County. If you filed for a divorce (and at the same time a "Consent Order), then the divorce action could be moved to Forsyth County; but a legal separation may not be.

Factors Indicative of Legal Separation

Couples may prefer legal separation for many reasons, including financial and religious beliefs. Others may seek to protect their children, separate complex finances and ensure health benefits continue, such as those received from one spouse’s employer. Legal separation does offer a variety of benefits that divorce proceedings do not; however, it is a good plan to discuss both in greater detail with an experienced lawyer.
Some of the most common reasons people state for appearing before the local family court to file for legal separation from their spouse include: Even if you are not planning on divorcing your spouse, legal separation gives you time away from one another to obtain counseling, define your goals for you future, sort finances and barn structure your vision of a better future. For some this may be exactly what is needed to fix the relationship. For others, however, the separation will quickly turn into divorce.
Many families pursuing legal separation in Georgia will return to live together at some point in the future because it is a legal remedy that can avoid the destruction of the marriage that occurs when spouses seek a divorce. Some courts do expect couples to have lived apart for a specific period of time before they will grant a divorce. For this reason, some people will choose to separate for a period of time to meet this requirement.

Requirements of Legal Separation in Georgia

To obtain a legal separation, the parties must be eligible to file a divorce in Georgia as set forth above. In addition, Georgia law requires that either or both spouses state under oath that: (1) they no longer live together as spouses; and (2) there is no possibility of cohabitation, regardless of any prospects for reconciliation. Form 5-3 provides an Affidavit of Separation for the parties to execute. If the parties are under a continuing protective order, the court may grant a legal separation with minimal findings of fact, but the spouse seeking a legal separation must still demonstrate a commitment to live separate and apart.

Filing a Petition for Legal Separation

To file a Petition for Separation, you must go to the court that is over the residency county of one of the parties. The Petition may be filed in that county even if the other party does not live in that County. The Clerk’s Office will assign the case to a judge and schedule an initial hearing before that judge.
Most counties require that a proposed order be submitted along with your Petition. The fees to file the Petition and for the Court Clerk to issue service on the other party generally run around $200.00.

Settling Terms of Separation

The next step after the Petition has been filed and the Answer has been served, is to negotiate the terms of the separation. This will likely include days that the parties have the children, with whom and where the children will spend holidays, the movement of assets, and whether or not the parties will move from the marital residence. Ideally, the parties can reach agreement concerning these important issues so that the case can be resolved and the marriage end as peacefully as possible. However, issues may remain after meeting with a third party mediator and the parties may ultimately need to return to Court. In these instances, the parties may have a special master appointed to help them resolve their remaining disputes.
At the time of a divorce, it will also be necessary to address the division of assets, custody of the children, and alimony . The division of assets is typically done on an equitable basis, meaning that it will be divided in a way that is fair and reasonable for both parties. Georgia does not have community property like some states, where it is divided equally. Custody of minor children will be addressed and the parties must agree to a parenting plan that outlines their time with the children, how they are going to share in the responsibility of raising the children and address holiday schedules. Alimony can be addressed as well. In Georgia, alimony is something that is paid by one spouse to the other for support. In deciding issues of alimony, Courts will look at the needs of the parties, their conduct during the marriage, the financial resources of the parties, the duration of the marriage, the parties’ standard of living during the marriage, and the contribution that each party made to the marriage in terms of work and homemaking.

Role of Representation and Counsel

Legal separation is often a time-consuming and complicated process for all involved. When you need a legal professional to help guide you through this challenging transition, choosing the right attorney makes all the difference. To optimize your chances for success, make sure to keep the following in mind as you seek legal representation:
Don’t shy away from asking about fees: The right lawyer will have an understanding of what your situation is likely to entail, and a clear idea as to what the total cost may be if you retain their services. For some people, it makes sense to engage a lawyer on a per-hour basis, while others might be better off taking advantage of a flat fee arrangement. Figure out which system works best for you, and how much money you’ll be able to afford.
Diligently check references: In particular, focus on the attorney’s reputation among clients who have retained the same separation-based services that you’re seeking. Meeting with one of their happy clients is a wonderful way to gauge whether this is the right specialist for you.
Understand your own priorities: Much of the work that goes into an effective legal separation is done long before the court date. Steps such as arranging for a mediator and gathering critical documentation will take time and patience. Learn as much about the separation process as possible, then speak with your lawyer about your options. From there, you can both figure out how much effort and resources can be focused on making this process as low-stress as possible.
A legal separation is the best way to transition out of a marriage while setting the stage for a strong future. Your legal representation is a critical element of a successful separation. Make sure you have the proper lawyer for the job to help you carry on your life with minimal stress.

Completing the Legal Separation

Once you and your spouse have reached an agreement regarding the terms of your legal separation, the next step is to formalize that agreement through court. In Georgia, there are two options for completing this process: entering a separation agreement by agreement of the parties or requesting an order of temporary leniency. However, standard practice is to enter a separation agreement by agreement of the parties. With no fault legal separation, the process begins with the submission of a Petition for Separate Maintenance. This Petition can also be used in cases of absolute divorce, making it somewhat more desirable. However, it is also the least expedient of the two processes. After you have filed the Petition, as well as provided notice to your spouse, the next step is to draft an agreement. This is usually done by an attorney. If you have made the decision to separate, it is likely that the financial details of your marriage have already been sorted out, or that you and your spouse are both in agreement as to the way in which they should be handled. After you have drafted the separation agreement, the next step is to present it to the judge at the finalization hearing. At this hearing, it will be up to the judge to approve the agreement by entry of a final decree. Although it is certainly not necessary, it is often advisable to retain an attorney to handle your legal separation. While there are no surprises during the process of legal separation, it is still a good idea to have the legal protections that only an attorney can provide.

After Legal Separation

Moving Forward After Separation
With a legal separation, parties move forward with their lives with the knowledge that there is a definite end game. They can either resolve their issues and choose to reconcile with the other spouse or they may still proceed with a divorce if they do not believe the end result is going to be in their best interest. In some situations, once parties have lived separate and apart for a certain amount of time, reconciliation becomes more likely.
Keep in mind that for parties who have been living "separate and apart" for less than a year and who desire a divorce, they must still go through the one year waiting period, even if they have a legally separated from their spouse. However, should both parties agree to waive the waiting period, they may do so at any time. Even so, a party may find it useful to draft a final settlement agreement during the separation period that will allow for the filing of a divorce when reconciliation proves not to be an option . This is particularly useful if children are involved and parents don’t want to go through the entire process again at a later date.
Overall, a legal separation provides many benefits. It allows parties (including children) to have access to support, to find stability in their lives, and to plan for a more certain future. While arrangements are often temporary, this process may serve as a bridge to a more stable situation.
Children also benefit from a legal separation. Once parents establish the separation period, courts usually presume that the child should remain with the residential parent. While parenting plans (e.g., primary residence, visitation, etc.) are typically designed with the residential parent as the custodial parent, the non-residential parent can expect the same amount of parenting time. The parties remain exactly where they are prior to the filing of the action and children are allowed to view the relationship as the transitional step it is.