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Legal Separation

Legal Separation

Divorce trials have the potential to be long, drawn-out, difficult battles that often leave both parties emotionally bruised and battered. With that being said, recently more and more couples have begun to opt for litigation alternatives such as mediation or arbitration. Less commonly however, some couples seek to avoid litigation by avoiding the divorce process altogether by either opting for separation or a separate maintenance action.

Generally, legal separations involve husbands and wives who live apart according to the terms of a court order or separation agreement. The primary reason couples opt for legal separation in lieu of remaining informally separated is because legal separation provides certain protections. For example, spouses who separate informally still remain labile for the other spouse’s debts and financial obligations even though the spouses are no longer cohabitating. Although there are several benefits associated with seeking legal separation in lieu of informal separation, couples living separate and apart in Georgia are not able to avail themselves of legal separation because legal separation is not legally recognized by Georgia law. But, for those who wish to separate from their spouses, but who do not wish to litigate a divorce action, there are two available options:

Informal Separation

Georgia law does not recognize the concept of legal separation. However, this does not prohibit couples who are simply not ready or not willing to engage in the divorce process from separating from each other informally. During this separation period, the couple can determine what course of action is best for their family. Often after a period of separation, couples determine that seeking a divorce or initiating a separate maintenance action (discussed below) is the most appropriate course of action. Other times, couples opt to simply remain informally separated, especially in cases where there are no children or significant assets involved and neither spouse is seeking any form of support from the other spouse. Although it is advisable for couple’s to seek a final resolution of issues such as child support, child custody and alimony by seeking a divorce decree, there are several reasons a couple may remain separated in lieu of seeking a divorce. For example, couples may wish to separate, yet remain married for the following reasons:

  • To meet the 10-year requirement for social security benefits. If a marriage has lasted at 10 or more years, a divorced spouse may be entitled to social security benefits equal to the greater of: 1) those based on his or her work history, or 2) 50 percent of what his or her ex-spouse is entitled to based upon that spouse’s work record.
  • To continue receiving health insurance benefits under the other spouse’s health plan. Once a couple divorces, most employer sponsored health plans will no longer cover the employee’s ex-spouse. Thus, couples may opt to remain separate so that a spouse with preexisting medical conditions or who is in need of medical care does not loose medical insurance coverage.
  • To take advantage of potential tax benefits from filing jointly.
  • To retain certain military benefits.

Separate Maintenance

Georgia law allows spouses who wish to remain legally married but live separate and apart from their spouse to initiate an action for separate maintenance. O.C.G.A. § 19-6-10. A separate maintenance action is similar to a divorce in that issues of child custody, child support and alimony may be resolved either by agreement between the spouses or by the court. In fact, the advantage of seeking separate maintenance in lieu or remaining informally separated is that separate maintenance actions provide financial and emotional security that remaining separated with no formal agreement or court order would not provide. See our article specifically addressing Separate Maintenance actions for more specific information on Separate Maintenance actions in Georgia.