Differences Between Legal Separation And Divorce In Georgia

differences between legal separation and divorce in Georgia

Deciding on a divorce or legal separation is not easy and can be quite confusing. To make the best decision, you need to understand the key differences between them and weigh your options. 

Divorce and legal separation are similar in a way; they both create space between you and your spouse. While a divorce legally terminates your marriage, legal separation is a court order that enables you to live separately while being married, with all your rights and responsibilities mandated to you. Whichever path you take, divorce or legal separation are court orders that specify how your money will be shared, how child custody or child support would be established, how your property will be shared, and also how alimony will be calculated. 

What Is Legal Separation? 

We know that divorce completely dissolves a marriage, but then what is a legal separation? Legal separation is a word that refers to a situation in which a couple may stay married but must live apart as a result of a court order. 

Georgia's divorce rules do not provide a provision for legal separation. In other words, legal separation is not legally recognized in that state. Instead, they have something similar which is called separation maintenance. Separate maintenance, which is similar to legal separation, addresses all the issues that are mandated in a divorce, except for the ending of a marriage. 

In states like Georgia, you can request separate maintenance or legal separation based on two grounds: 

1. Separation agreed upon by both the parties (it is similar to no-fault grounds in a divorce) 

2. Separation cases filed by one spouse based on misconduct on the part of the defendant spouse (also known as fault-based grounds in a divorce which includes adultery, drug use, alcohol addiction, or domestic violence, and so on) 

Moreover, separate maintenance in Georgia addresses the following issues: 

● Child custody 
● Child support 
● Visitations 
● Marital property and debts (depending on the state you are living in) 
● Alimony (if any) 

All these issues can be discussed by the couple, however, in the case of a conflict, a judge can make the final decision. For instance, legal separation in Georgia does not authorize the division of marital property. It can only be filed or maintained in divorce proceedings. 

It is a good idea to consider a prenup when getting married, where irrespective of the state you live in, your properties will remain your own. 

Benefits Of Separate Maintenance Over Divorce 

Choosing legal separation over a divorce is a personal decision. Couples may choose legal separation for religious reasons or to avoid the social stigma of divorce. Others may not want to end the marriage due to emotional reasons or to allow the other spouse insurance and pension benefits which he/she would’ve lost in a divorce. 

In some states, legal separation is required before you can get a divorce. The amount of time you have to be legally separated before the court grants you a divorce varies from about 6 months to a year. 

Another benefit for separate maintenance is that one spouse may still be eligible for health insurance coverage from the other spouse’s job which would otherwise end if you choose to divorce. 

Legal separation also allows you to continue paying taxes jointly which can lead to tax benefits. You can also hire a tax attorney if you need help with your case. 

Another advantage is that couples may also qualify for social security, military, or pension benefits only if they’ve been married for at least 10 years. 

Choosing separate maintenance also allows you to get a divorce settlement agreement if you or your spouse decides to end the marriage. This will save both of you from expenses and a complicated journey throughout the family court system. 

Lastly, marriage can be overwhelming, and being legally separated gives both the spouse’s time-out or a “cooling-off” period where they can think and determine how to resolve their issues. 

Pitfalls Of Legal Separation 

The following are pitfalls of legal separation that you should be aware of. 

● You may still be responsible for your spouse’s debts 

● Your spouse will still be counted as your next of kin, where if an accident occurs, he/she will be able to make financial and medical decisions for you. In addition, your partner will retain property rights if you die. 

● You are not free to marry someone else. 

Is A Lawyer Needed For Separate Maintenance? 

In Georgia, divorce laws can be complicated, especially when it is a fault- based one. 

Separate maintenance or divorce requires you to fill and file a bunch of paperwork, appear in front of a judge, and correspond with the opposite party’s lawyer. Therefore, to get the most desirable outcome from your case, hiring a lawyer is crucial. 

How To Get A Separation 

Trial Separation 

Couples can try out a trial separation where you live apart and it has no legal effect. It gives both parties some time to think about whether legal separation or divorce is the best option. You can do this without the involvement of the court to figure things out. Once you involve the court, it becomes a legal matter where the court finally declares you are separated. 

Permanent Separation 

Permanent separation is where couples decide to live apart for good. Most states view all property and debts as separate and decide to divide. However, some states, like Georgia, do not authorize the division of property and debts. 

In this type of separation, debts such as house payments, home maintenance expenses, and children’s expenses, are all treated as joint debts of both spouses. 

Concluding Your Marriage And This Article

In conclusion, it is important to consider all options and weigh the risks before deciding on whether to pursue a legal separation or a divorce. A legal separation can be just as complicated and as costly as a divorce. It can also be a step you do not necessarily have to take depending on the laws of your state.

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