Georgia doesn’t have a legal separation. So what is Separate Maintenance?
The State of Georgia is one of only 7 states that does not have a “legal separation”. Instead, Georgia has an action called Separate Maintenance. (O.C.C.A. § 19-6-9 et seq.) What’s the difference?
For the other states, they have varying forms of a period of time married people remain separated both physically and financially before they either reconcile or divorce. Some states recognize a legal separation and some states require them.
Georgia does not require a married couple to be “separated” for any formalized length of time. Rather the state requires that at the time the divorce is filed the parties are in a “bona fide state of separation” meaning they are no longer intimate. (O.C.C.A. § 19-6-10) Thus a couple can be living in the same house but still be separated.
A Separate Maintenance action in Georgia is an action for a married couple to separate assets; separate debts; determine custody, visitation and child support; set alimony; and determine attorney’s fees for the action but the parties remain married. If the parties later decide to divorce, it will require another legal action to do so. Thus it can cost twice as much to eventually end up divorced.
If one party files a Separate Maintenance action and the other party files a counterclaim for divorce based on the marriage being irretrievably broken, the Court will award a divorce. This is because it only takes one party to claim the marriage is irretrievably broken and there is no hope of reconciliation. In other words, you cannot make someone stay married to you in Georgia.
A separate maintenance action only seems to make sense in a few situations. For example if one person has significant medical issues and is covered by the other party’s insurance, they may want to live separately but allow the party with medical issue to remain on the insurance plan. Another example is where a couple really needs to live separately, but for religious reasons cannot bring themselves to file for a divorce.
There are other situations that may make sense.
If you think you would benefit from a separate maintenance, you should discuss your unique situation with an attorney. Contact me if you would like to meet to discuss your situation.
Nedra K. Howard
Nedra has represented clients in matters relating to divorce, separate maintenance, child custody and support, family violence protective orders, adoption, prenuptial agreements, business disputes and litigation, personal injury, property damage, and wills.