In Georgia, the term "legal separation" is not used. Instead, couples who want to live separately, but remain legally married, must seek a Decree of Separate Maintenance. This allows the court to decide marital issues such as finances, property division and custody of children without granting an actual divorce.
Meaning of Legal Separation in Georgia
Legal separations are recognized in most states, but not in Georgia. According to Georgia law, separating couples have only three options: divorce, which ends the marriage; annulment, which erases the marriage as if it never existed – usually for technical reasons; and a separate maintenance order, which does not legally end the marriage. If you hear the phrase "legal separation" in Georgia, it means something very specific. Couples are not permitted to divorce in Georgia unless they are legally separated, meaning the two people consider themselves separated with the intention to divorce. This is not the same as separate maintenance.
Meaning of Separate Maintenance in Georgia
Separate maintenance is the closest thing to the legal separation permitted by other states. It allows the court to rule on child custody, division of assets and other marital issues, but does not legally end the marriage. Couples may want to remain married for religious, moral or financial reasons and they can seek separate maintenance as an alternative to divorce.
Prepare a Separation Agreement
Before filing for a Decree of Separate Maintenance, you and your spouse should try to reach a settlement agreement that confirms you are physically separated and outlines your requirements for the division of money and property, child custody, visitation schedules and spousal support. Once signed, the settlement agreement is legally binding, and both parties are obligated to observe its terms.
File the Paperwork
After negotiating the separation agreement, you or your spouse must petition the court for a Decree of Separate Maintenance. The judge has the exclusive power to approve your settlement agreement or to order a different settlement if this would be more equitable.
If you are acting without an attorney, collect the forms from the domestic relations division of your local superior court. The forms you require depend on your situation. You will need at least a Domestic Relations Case Filing Information form, Complaint for Separate Maintenance, Verification, and Domestic Relations Financial Affidavit. If you have kids, you will also need a Child Support Worksheet and a Parenting Plan. File all the required paperwork and serve the petition on your spouse personally, either by sheriff or by private process server.
Attend the Court Hearing
Your spouse has 30 days to respond to the petition and put forward their side of the story. If you disagree on many issues, the court can arrange a series of pretrial hearings to be held before the main hearing when the judge will make a final ruling. If you have agreed on all the issues, the court will generally approve the separation agreement you and your spouse have prepared. At the end of the process, you will have a legal ruling on all the financial and child custody issues, but you will still be legally married.