Legal separation prior to divorce is a status the parties must reach to file for divorce in Georgia. Many people believe this means the parties must be physically separated. However, this is not the case.
Unlike many states, Georgia does not recognize the concept of ‘legal separation.’ Although the term legal separation is often used in Georgia, it means something specific. A couple cannot divorce in Georgia unless they are legally separated with the intention of divorcing.
Georgia does not allow a legal separation option as an alternative to divorce like many states. Couples have three options: ending the marriage via divorce, annulment, which erases the marriage as if it never existed; and a separate maintenance order, which does not end the marriage by law.
To be legally separated, a spouse does not have to move out of the marital home. Under Georgia law, it’s sufficient that the parties suspend “marital relations” with the intention to divorce. You can continue living in the same household as your spouse while the proceedings progress. There is no timeframe for legal separation but it’s advisable that the parties are legally separated for at least a month before filing for divorce.
To qualify for legal separation prior to divorce in Georgia, either:
- One party must have moved out of the family home:
- A spouse must have moved to another bedroom with the intention of divorcing.
Legal separation was defined in the 1982 Georgia Supreme Court case of Blasingame v. Blasingame.
The husband argued no separation as required for a divorce based on the ground of cruel treatment took place because both parties lived under the same roof, merely occupying separate portions of the house during the time in question.
The Supreme Court noted evidence at the trial demonstrated the husband slept in a separate room in the basement of the house. He twice testified at trial that he and his wife had separated. In denying his appeal, the justices said the appellant failed to introduce any evidence of reconciliation or resumption of conjugal rights since the separation. The court ruled:
“It is not essential that the husband or wife should leave the marital homeplace; separation can occur when one spouse moves into another room with the intent and purpose of suspending conjugal rights.”
The case highlights the fact the separation must be maintained to be valid. If the couple makes up post-separation, the separation agreement will be compromised.
Voluntary cohabitation will set aside future alimony provisions, although this does not mean property or payments already made should be returned.
Setting a definitive date for separation prior to divorce may be important in Georgia to avoid a legal dispute. Parties should aim for a date that’s easily verified. It may be the start of a month or a date of an argument that resulted in one party moving out or moving to a separate bedroom.
Often parties make support payment arrangements after separation. Typically, these are not admissible in the final divorce proceeding. The court will consider the financial circumstances of both parties at the time of the final divorce proceeding.
For more details, contact the Law Office of Michael West in Newnan at (404) 913-1529.