Legal Separation vs Divorce in Georgia: Unpacking the Distinctions

Legal Separation and Divorce: The Basics

The terms legal separation and divorce are frequently used interchangeably, but in fact, they are distinctly different legal concepts. While legal separation and divorce can overlap to a degree, they each serve unique purposes within Georgia’s family law framework. In this section, we will take a closer look at how statutory provisions define legal separation and divorce, outlining the basic differences. Understanding these concepts is essential for Georgians who find themselves at the crossroads of a rocky marriage.
A legal separation is a status affording spouses the opportunity to live separately and apart from each other while remaining legally married . Under Georgia law, a legal separation does not mean that the parties cannot seek a divorce in the future, and some individuals opt for legal separation simply as a way to avoid jumping straight to divorce. However, it should be understood that there are certain restrictions on the concept of legal separation under Georgia law. For example, a voluntary separation agreement would not subject either party to any of the restrictions concerning custody, child support and health insurance that exist under Georgia divorce law. This means that while legal separation is a step you can take to determine whether divorce is inevitable, you cannot rely on a legal separation in order to avoid the consequences of divorce.

Divorce Grounds in Georgia

Georgia law provides thirteen statutory "fault" based grounds and one "no-fault" ground for divorce. "Fault" based grounds are those in which one spouse is alleged to have violated the marriage by committing a particular type of wrongful behavior.
By contrast, the one "no fault" ground is that the marriage is "irretrievably broken." This means that there is no chance of the couple reconciling which makes it necessary for them to divorce.
The thirteen fault-ground divorce bases are as follows:
1 – Intermarriage between people otherwise within prohibited degrees of kinship;
2 – Mental incapacity at the time of the marriage;
3 – Impotence;
4 – Adultery;
5 – Wilful refusal to consummate the marriage;
6 – Conviction of a felony;
7 – Cruel treatment;
8 – Incurable mental health issue;
9 – Habitual drunkenness;
10 – Inhuman treatment;
11 – Pregnant by another man at the time of the marriage;
12 – Attempting to kill the other spouse; and
13 – Abandonment.

What is Legal Separation in Georgia?

In the state of Georgia, the term "legal separation" is used interchangeably with "marital separation." It does not carry a distinct legal connotation. In fact, there are no laws specifically addressing legal separation. Therefore, while spouses may be legally married but living apart, this does not constitute a legal separation in the sense of an alternative to divorce. In other words, unlike women who desire to use the Title 19 language of "legal separation" to distinguish their situation from that of a divorced woman, there is no such language in the Georgia Code. For people who think the process of legal separation and divorce is the same, there are many similarities, and this is why Title 19 of the Georgia Code provides the same laws dealing with marital separation as it does with divorce. However, there are some distinctions from a practical standpoint. The process of marital separation is very similar to a divorce in terms of the required documents and Court appearances. Also, just like divorces, marital separations require Child Support Worksheets and the mandatory Parenting Plan (if there are minor children). The true distinction between the two, however, is that the Georgia Court cannot grant a legal separation (the time when the spouses can live apart yet remain married) unless the parties agree to same and there are no issues for the Court to decide. In other words, a legal separation is the time when the spouses agree that they are going to live apart but don’t want a divorce, then the parties can enter into a separation agreement during which they’ve resolved all issues of custody, child support, visitation, alimony, equitable division of property, and any other issues the parties agree to. The Judge will sign off on the written agreement and it has the same force and effect as if the parties were divorced.

Top 5 Differences between Legal Separation and Divorce

In Georgia, the key distinctions between legal separation and divorce generally center on the legal status of the parties, the impact on financial obligations, and the implications for children. Legal separation is often viewed as an intermediate step prior to divorce, and may not always carry enforceable court orders. On the other hand, divorce results in a divorce decree with binding orders regarding property division, child custody, and financial responsibilities.
When it comes to legal status, both legal separation and divorce mean the end of the marriage. However, a legal separation does not formally dissolve the marriage – the parties are still legally married, but they live separately and resolve certain issues like child support and alimony. In contrast, a divorce legally terminates the marital relationship and frees both parties to marry again.
In terms of financial implications, both legal separation and divorce can affect the parties’ financial situations, although the legal separation is typically less permanent than the end of the marriage. For example, a legal separation may involve a temporary division or allocation of assets or debts, but the marriage is still intact. On the other hand, the property division orders in a divorce are final and may have long-term ramifications for the parties’ financial future.
Finally, both legal separation and divorce can have important implications for children. While Georgia courts often encourage parents to work together to come up with a parenting plan, legal separation and divorce can both result in court-ordered parenting arrangements that address child custody, visitation, and child support. These documents can provide much-needed security for children and parents alike, by helping to establish and regulate the relationship dynamic.

The Pros and Cons of Legal Separation

Pros and Cons of Legal Separation in Georgia
Similar to divorce, legal separation is the process whereby a couple undergoing an irretrievable breakdown in their marriage decides to live apart from one another. However, instead of completely terminating the marital relationship, they legally court order how the issues relevant to a divorce will be handled. This is in contrast to a "Decree of Divorce," which has the effect of completely dissolving the ties of matrimony between two people. A legal separation is often advantageous when the parties have legitimate religious beliefs preventing divorce. The court may grant a party a "Religion-Based Separation" or "Religious Separation". A legal separation is also beneficial for a spouse that anticipates possibly reconciling with the other spouse in the future. It may also be useful if there are children involved because it allows the couple to establish a parenting plan and child support provisions relevant to that plan. Financially, a legal separation allows a couple to divide up their property and make ongoing support payments to one another without having a Judgment of Divorce terminating a spouse’s right to receive such payments. Also, because the Court does not terminate the marriage, a spouse’s Social Security and retirement benefits are not affected. A legal separation also has its disadvantages. For example, property division on a temporary basis does not take into consideration future appreciation or depreciation of assets. At the final hearing, those earnings will be divided as a function of equitable distribution. A legal separation can give a party a false sense of security. If the spouse becomes pregnant, then the parties can no longer obtain a no-fault divorce, since they would have to amend the Petition for Divorce to a fault based ground, such as adultery. Married spouses have fewer legal rights than cohabiting partners. Although the parties may decide their legal separation, it cannot protect a spouse who could have broader legal rights and remedies if there was no separation.

The Pros and Cons of Divorce

Divorce is the legal termination of a marriage, and it frequently concludes with managed or even negotiated divorce agreements regarding property and children. In Georgia, the process for obtaining a divorce begins with the citizen filing a "divorce complaint" in the county where they live.
If you are thinking about divorce, it’s important to understand both the advantages and disadvantages that will apply to your life if you choose this avenue.
The primary advantage of divorce is that it is a legal solution to many marital problems. It can assist couples in gaining closure , and it can help them to save their reputations in a social context and secure their future financial viability. Since there’s no such thing as a quick or cheap divorce, this option is not something to be considered lightly. However, once you’ve made the decision, you can move on with your life.
The downsides to divorce include the high cost, its sometimes lengthy duration, and the fact that you may need to split your assets and property with your spouse. However, some divorces occur without any need for division of property or assets.
Pursuing divorce is a serious decision. Be sure to carefully consider the pros and cons of a full legal process, and remember that you have to be certain that this is the right step for you before proceeding.

Legal Process and Requirements for Both Legal Separation and Divorce

It is important to note at the outset that there is no legal separation in Georgia. Instead, the option closest to legal separation in Georgia is a suit for separate maintenance. Section 19-6-10(a) of the Georgia Code defines separate maintenance as: "a proceeding in which a husband or wife seeks to obtain an order of the court granting to the complaining party a portion of the property acquired by them during their marriage in accordance with the principles of equity and in such a manner as to do complete justice between the parties and to allow for such future actions as may be appropriate, as provided in Article 3 of this chapter."
Essentially, the separate maintenance action will determine the property that each spouse has an interest in and whether separate temporary spousal support is awarded. Unlike divorce, a legal separation will not terminate the marriage. Because the couple will still be married after the separate maintenance action, the parties cannot have an uncontested case because they must enter into a settlement agreement that is approved by the court to be granted an award of separate maintenance, assuming that there are no questions of equitable division between the parties to argue over.
The divorce process in Georgia requires filing a complaint for divorce with the Superior Court in the county where one of the parties resides. In contrast, only the spouse seeking the separate maintenance is required to file. The other spouse is not legally required to respond so the separate maintenance is primarily in the hands of the initiating party.
There is no compelling interests or requirements in filing for separate maintenance since the action always can become a divorce action. When a spouse files for divorce, the legal requirements mandate is that the courts hold a hearing on the issue of divorce. The actions differ in the fact that the parties cannot enter into an enforceable settlement agreement when filing for divorce where they can in a legal separation. Courts will not approve settlement agreements in a divorce case if spousal support is not sufficiently addressed and the courts also will not approve any marital settlement agreements after a divorce proceeding ends.

Impact on Child Support and Child Custody

In the context of Georgia law, a legal separation and a divorce can make a world of difference for parents. Although legal separation is, in many ways, similar to divorce, it can have an important impact on the following:
A custodial agreement allows both parents to set the terms of their arrangement on visitation and decision-making. The main difference between a legal separation and a divorce when it comes to child custody arrangements is that a legal separation does not automatically terminate the marriage. It is possible for a couple to legally separate, only to move toward reconciliation as time passes.
When a parent is registered with PATH, their 3- or 5-year plan may affect their child. These plans determine what a parent must meet in terms of requirements, such as supporting their children. If a parent is legally separated instead of fully divorced, they may not be required to support their children immediately. This is one area where councils and caseworkers may use discretion. However, in a divorce, the legal support requirements will begin immediately.
Because a legal separation does not represent a complete termination of a marriage, it does not have the same impact on support obligations as a divorce does. However, many parents will argue that maintaining the same home and utilizing the same resources would make it unacceptable for them to face the same support obligations as they would face if they were fully divorced. Again, the courts may use discretion when determining the merits of a child support case when the parents are legally separated.

Financial Ramifications of Separation and Divorce

Financially, both legal separation and divorce deal with the separation of assets and finances. However, legal separation is temporary in nature. Therefore, if you and your spouse separate your finances while you are legally separated, the court will generally not intervene in how you divide your assets. Following a divorce, the process is a little different. When you and your spouse file for divorce, a court has the authority to intervene in how your assets or liabilities are separated.
In a legal separation, you and your spouse may agree, or the court may order, that your joint property be divided in a different manner. However, once that determination is made, the court does not have the power to enforce it. Once the divorce is final, the court can enforce the terms of the Final Order. In sum, a legal separation allows you and your spouse to divide your assets, but ultimately if you are still married, the court cannot enforce that division.

How to Decide on Legal Separation or Divorce

In Georgia, the decision to file for legal separation versus divorce is a big decision that requires careful consideration. The following step-by-step guide is designed to help you evaluate your options:

Step 1: Define Your Reasons for Separation

Each person’s reasons for separating are personal and unique. We advise you to write down your reasons so that you can refer back to them when making decisions.

Step 2: Consider the Legal Implications

Legal separation requires a Judge to make decisions about how you will live during the separation period. If you are married, the law provides rights with respect to the marital residence, financial obligations and assets. In the event of divorce , the same decisions would be made by the Court. It may therefore be preferable to file for divorce directly rather than attempt to separate.

Step 3: Consult with Experts

Meet with a litigator to discuss your options. Separating couples often seek legal advice before filing a complaint for legal separation or divorce. Getting legal advice prior to filing the divorce complaint will help you understand the legal process and to properly prepare for it.
If your case has complex financial issues or custody issues, consider hiring a financial forensic expert and a qualified child psychologist or counselor. These experts will assist in developing a complete picture of your family’s finances and help the judge determine the best outcome for your children.
In addition to consulting legal and financial experts, consider talking with a therapist. In some situations a therapist can suggest ideas or strategies which may resolve the issues leading to the separation without the need to legally separate or file for divorce. In other cases, your therapist may make a referral to an attorney or other expert.