It has become unusual for couples to legally separate. Typically, when couples reach a point where one or both of them feels that the courts need to resolve their differences, the chosen avenue tends to be divorce.
However, in Georgia, legal separation remains an option for couples who wish to spend time apart from each other without dissolving their marriage. While the option is rarely used, it may represent a useful remedy for couples who hope to reconcile but have serious issues that need to be resolved.
Actions for “separate maintenance” may be brought when spouses “are living separately or in a bona fide state of separation and there is no action for divorce pending.” O.C.G.A. § 19-6-10.
Under Georgia law, “Marital separation means a suspension of marital relations between husband and wife without dissolution of the marital relationship.” Blasingame v. Blasingame, 249 Ga. 791, 791 (1982). When couples are separated, “the suspended conjugal rights include the company, the cooperation, assistance, and intimacy of the other spouse in every conjugal way.” Id. However, for a couple to be considered separated, “[i]t is not essential that the husband or wife should leave the marital home place.” Id. For example, “separation can occur when one spouse moves into another room with the intent and purpose of suspending conjugal rights.” Id.
A separate maintenance action may involve the same issues as a divorce matter, including child custody, child support, alimony, and division of property. Significantly, property awarded to a spouse in a separate maintenance action becomes a separate asset of that spouse and, in general, is not subject to division if the parties later divorce. Further, such property remains the separate asset of the spouse even if the parties later reconcile.
If the parties agree that they are living in a bona fide state of separation and wish to voluntarily enter into a separate maintenance agreement, they may do so and submit the agreement to the Court for approval. Alternatively, if there are unresolved disputes between the parties, one of the parties can instigate litigation and petition for the Court to decide all relevant matters. However, if one of the parties later files for divorce, any separate maintenance action will generally be subsumed into the divorce action.
If separated parties decide to reconcile, they can enter into a reconciliation agreement to resolve the issues involved in their separation. Further, if the couple resumes cohabitation, a spouse liable for alimony will generally not be obligated to continue paying alimony to the other spouse, although he or she will not be entitled to a refund of any prior alimony payments.
If you wish to explore the unconventional avenue of a legal separation, or any other family law remedy, it is important to contact an experienced family law attorney to explore your various options. At the Berelc Law Office, we have handled hundreds of contested and uncontested domestic cases and understand what your various options will be in revolving your domestic disputes.