Georgia’s Rules for Separation While Living Together
In Georgia, separation often involves two spouses living apart from each other. However, in Georgia, couples can be separated while still living together. It is possible in Georgia to live as a separated couple while remaining legally married.
The Semantics of Separation in Georgia
In many other states, a couple is “separated” when the spouses keep the marriage but no longer live together. It may be a required precursor to divorce proceedings and affect child custody until the divorce gets finalized.
In Georgia, however, the state has no “legal separation” provisions. However, the law discusses a “bona fide” separation.
Bona fide separation is when a couple stops “engaging in a marital relationship.” A couple can live together and still be considered separated. The only requirement is that they do not engage in sexual activity with each other.
We advise clients facing bona fide separation to sleep in separate bedrooms and allow their spouse private time and space. However, if you and your spouse have sex while a separate maintenance or divorce proceeding is pending, the judge could dismiss your petition, lengthening the time necessary for a resolution.
Why Do Couples Separate While Living Together?
Georgia couples under bona fide separation may choose to live in different locations. However, not every couple will find such an arrangement feasible. They may cite the following reasons:
- Cost of living – One spouse may not be able to afford to rent or buy a separate residence. They may choose to move out when their financial situation changes or continue living together for another reason.
- Cost of divorce proceedings – Some spouses may not be able to afford divorce proceedings. They can continue to live together and save money to eventually file for divorce.
- Children – Divorce or changes in custody are stressful for any child. It’s often in children’s best interest for a couple to continue living together and keep a stable family life until an amicable resolution can be reached.
- Healthcare – Frequently, one spouse will cover their entire family’s healthcare needs through their employer’s insurance plan. If a spouse or child has complex health problems, living together while staying separated may be more prudent for now than pursuing a divorce.
“Separate Maintenance” in Georgia
Separate maintenance is an alternative to divorce. Couples in separate maintenance do not live together but will stay married, share marital property, and retain the same insurance and tax benefits as before.
A couple pursuing separate maintenance must meet three criteria:
- The couple must be legally married – Separate maintenance is unavailable for a couple that isn’t legally married.
- The couple must be separated – Unlike a traditional divorce, the defendant in the proceedings is not subject to Georgia residency requirements.
- Neither spouse has filed for divorce – You cannot pursue separate maintenance if divorce proceedings are already pending.
The proceedings for separate maintenance are similar to the proceedings for divorce. Once the filer submits their papers to the court, they must serve a copy to their spouse.
The spouses may form a written agreement outlining the following:
- When the separate maintenance status should take effect
- How to handle shared finances
- The management of shared property
- Who has custody of the children
- The specifics of child support payments or temporary alimony
The court may approve or request modifications to the agreement. When a judge is satisfied, they will grant the separate maintenance order at a hearing.
Requirements to File Divorce After Separation
Since Georgia defines separation differently, the requirements for a spouse to file for divorce are also different. A spouse can file for divorce in the Peach State so long as they are bona fide separated. They don’t have to wait for a predefined period.
Couples in separate maintenance can also choose to file for divorce. Similar processes, waiting periods, and procedures apply. However, there are some additional consequences, including:
- The spouses must divide their marital property equitably.
- One spouse may lose their health insurance coverage.
- The spouses must file their state and federal tax returns under “single” status.
After you file, the court must wait at least 30 days before it can schedule a hearing. If one spouse serves the other by publication (placing a notice in a newspaper), the waiting period extends to 60 days. Couples may draft a settlement agreement while the waiting period is in effect, but the court cannot approve it until the period passes.
Consult an Atlanta, GA, Separation Lawyer
If you’re considering separation while living together, trust the Atlanta divorce lawyers of Kessler & Solomiany, LLC to advocate for you. Contact us at (404) 688-8810 for a confidential consultation.
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