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How to File for Separation in Georgia

by Sharon Jackson  on May 4, 2023 under 

Strictly speaking, Georgia law does not formally recognize a legal separation. What should you do, then, if you no longer wish to stay in a relationship with your partner but do not wish to dissolve your marriage? A separate maintenance action, which is Georgia's closest counterpart, may be what you're searching for. A separate maintenance action permits the spouses to stay married, removes whatever duty each spouse has for the other, and gives crucial legal judgments on the following:

  • Alimony
  • Child custody and visitation
  • Child support
  • Distribution of assets and debts from a marriage
  • Possibility of a settlement

You are either married or divorced in Georgia. The state does not expressly recognize legal separation, and there isn't much of a middle ground as you could find in other jurisdictions. You must approach the court for a divorce or a separate maintenance order if your marriage is in trouble and you don't want to live with your partner.

You can acquire some of the benefits of legal separation with separate maintenance, yet things are still very different in Georgia. The marriage is not ended by a separate maintenance order. You cannot get remarried, but if you reconcile with your husband, you are free to live together again.

How to File for Separate Maintenance

One party must have resided in Georgia for at least 30 days prior to applying for separate maintenance. Based on where each party will be residing, your attorney can assist you in choosing which county to file in.

Hopefully, this line of action may be pursued with the consent of both parties. Nonetheless, a process server will be required to deliver the documents if one spouse files but the other spouse objects to the filing.

The following steps must be followed in order to obtain separate maintenance:

  • You must be in a "bona fide state of separation." Put simply, you must bring to a stop your " marital relations," which include your spouse's companionship, collaboration, help, and emotional and sexual involvement.  You do not, however, need to physically leave the marital home. Of course, moving to a different house or at least a different bedroom will give you a better chance of convincing the judge that you have genuinely ceased your marital ties.
  • In the county where the other spouse resides, one spouse must file a petition with the family court requesting for an order of separate maintenance.
  • You must provide evidence that your marriage is valid.
  • There cannot be an active divorce case.

The petitioner spouse must have made arrangements for the other spouse to receive personal service of process. This often implies that a third party has physically served the paperwork—informing the other spouse of the separate maintenance action and the date of any upcoming court hearing. Mailing or publishing a notice is insufficient notification.

The court may require proof of a financial imbalance between the spouses, which warrants the "maintenance" of the lower-earning spouse.

A separation agreement between the couple should be filed, outlining how they will handle matters like child custody, child support, and alimony. If the couple is unable to come to an agreement, they might petition the court to decide the matter for them. Even if they concur, the court may still overturn the decision based on factors including the "best interests of the child."

If there are still issues, the court will schedule a hearing so that both spouses may present their cases.

The court will sign the separation agreement if it is equitable to both parties, as it would be in an uncontested divorce case if both parties are willing to sort out all the concerns. This will be formalized into a judgment having binding legal effect.

Yet, they must go before a judge if there is conflict between the spouses. Both spouses can present their cases during a hearing before the court.

Keep in mind that this filing may be just as complex as a divorce. Fees must be paid, papers must be submitted, and many court hearings may be necessary. The hiring of an attorney is perhaps the most beneficial option you can make. They can assist you in weighing your choices and determining if it would be beneficial for you to seek a divorce or separate maintenance.

Speak with an Experienced Gwinnett County Separate Maintenance Attorney

If you need assistance with filing separate maintenance, Attorney Sharon Jackson, LLC is here to assist you. We have years of expertise advocating for our clients' and their children's best interests while assisting them in making difficult decisions.

To schedule a consultation, just give us a call at (678) 909-4100. We’d like to hear your story and help you in any way we can.


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