Georgia Separation and Divorce Law

By Bernadette A. Safrath
ring image by Jens Klingebiel from Fotolia.com

Deciding to end a marriage can be an emotional time. In Georgia, a couple can choose legal separation or divorce. Both proceedings address the same issues, including child custody and support, alimony and dividing marital property. The only major difference is that with legal separation, the marriage is not terminated.

Legal Separation

Legal separation is an option for spouses who believe divorce is against their religion or who need to remain married so one spouse is still covered under the other's medical insurance. Georgia courts do not grant formal legal separations. However, if a couple considers the marriage over and no longer has sexual relations, they are considered legally separated. This is possible even if the spouses still live together in the marital residence. Georgia's separation proceeding is called "Separate Maintenance." An Order for Separate Maintenance has the same effect as legal separation and also includes any child custody and support awards, an alimony award and each spouse's marital property award.

Divorce

Either spouse can file for divorce in Georgia by submitting a Petition for Divorce with the court located in one spouse's county of residence. Georgia requires that at least one spouse be a state resident for no less than six months before filing. Georgia courts permit no fault divorce based on "irretrievable breakdown." If the spouses acknowledge that the marriage has failed and there is no chance of reconciliation, a court will grant the divorce 30 days after filing. A spouse can also file for divorce and include fault grounds if one spouse has done something improper, causing the end of the marriage. Grounds recognized in Georgia include: (1) abandonment for one continuous year, (2) adultery, (3) habitual drug or alcohol use, (4) incest, (5) a spouse's mental incapacity and (6) "cruel treatment," such as domestic violence.

Child Custody and Support

Whether spouses separate or divorce, a court must decide custody of any children. Joint custody is preferred, unless one spouse has a history of domestic violence or child abuse. Custody is determined using the "best interests of the child" standard. The court will examine: (1) the child's preference, (2) which parent primarily cares for the child, (3) each parent's ability to raise the child and (4) whether the parents can cooperate in raising the child. The non-custodial parent is required to pay child support. The Georgia court determines child support based on the parent's income as well as how many children need support. Under these guidelines, the parent will owe 17 to 23 percent for one child, 23 to 28 percent for two children, 25 to 32 percent for three children, 29 to 35 percent for four children and 31 to 37 percent for five or more children. The percentage is selected based on: (1) the children's ages, (2) medical care costs, (3) educational costs and (4) child care costs.

Alimony

Alimony can be awarded to either spouse when she is unable to provide for basic needs. Alimony is awarded for a limited amount of time based on the time the spouse needs to receive training or education to become self-supporting. Additional factors include the other spouse's income and the duration of the marriage.

Dividing Marital Property

During divorce or separation, each spouse is entitled to keep his separate property. Separate property is a gift or inheritance received by only one spouse during the marriage and any property individually owned before the marriage. All other property is marital and is divided "equitably" in Georgia. This means that property is not divided equally, but each spouse will receive his fair share. A court will examine: (1) each spouse's financial needs, (2) the value of each spouse's separate property and (3) each spouse's income and ability to earn more money.