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What is the Difference Between Separate Maintenance and Divorce in Georgia?

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Written by Mary Stearns-Montgomery   
Thursday, 24 January 2013 10:41
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No one ever wants to go through the experience of ending a marriage, but these types of life events happen. Considering numerous factors including conflict, emotions, family, and assets, you will have to make hard decisions and take the right path in hopes to resolve these matters in an amicable manner. Whether or not to legally separate or go through the divorce process is the hard decision you will have to make. In Georgia, the law recognizes both a separation and divorce. 

bigstock-Family-Couple-Relationships-Cr-5604405How Does Georgia Recognize Separate Maintenance?

Most people incorrectly refer to a Separate Maintenance action as a legal separation. There is no nomenclature in Georgia law to support a legal separation. Instead there is a statute which allows for a person to file an action which protects their legal rights to custody, visitation, support, and use and possession of marital property, without the requirement that a divorce be requested. Under this type of separation, money awarded for the support of the spouse and children is called separate maintenance. In Georgia, you are legally separated if you are no longer engaging in marital relations and you consider yourself to be in an actual state of separation.

Living in a state of separation:

1. Trial separation. When a couple lives apart for a test period and decides whether or not to separate permanently.
2. Living apart. Spouses who no longer live in the same home or spouses who live in the same home but are no longer acting as husband and wife.
3. Permanent separation. When a couple decides to permanently split up.

Despite commonalities with the divorce process, there are advantages to a separation versus divorce. These advantages include:

  • Time to decide if divorce is what they truly want;
  • Retaining benefits such as health benefits that a divorce would end;
  • Retaining religious beliefs;
  • You do not have to be a resident of the state of Georgia for more than 6 months;
  • The separation agreement can be converted to a divorce settlement agreement.

What Constitutes Divorce in Georgia?

A divorce on the other hand is a process for the legal dissolution of a marriage by a court. Under Georgia law, one spouse must be living in the state and must have lived in the state for at least six months to get a divorce. In addition, the couple must be living in a state of separation to file for a divorce. Usually, you file a complaint for divorce in the Superior Court in the county where the marital residence is or where your spouse lives or your own jurisdiction if your spouse no longer lives in Georgia. To learn more about how to file for a divorce in Georgia, click here.

Moreover, Georgia is a no-fault divorce state and also recognizes 12 fault grounds for divorce. Whichever ground(s) for divorce you choose - fault and no-fault - this is usually mentioned in the complaint / petition for divorce.

After the complaint is filed, the spouse will be notified and served. A temporary hearing will be scheduled and then an agreement will be drafted identifying the division of assets including money and property and establishing child custody and spousal support. If an agreement cannot be reached, the matter will be taken to court and a judge will decide. 

Speak With Our Experienced Atlanta Divorce Attorneys Today

If you are considering a legal separation or divorce, contact our experienced divorce and family law attorneys today to understand your options and rights and help you through this process. Call us at 678-905-8492 or complete a contact form to schedule a consultation.