Understanding Legal Separation Agreements in Georgia

What is a Legal Separation in Georgia?

A legal separation is a situation when you and your spouse decide to live apart, but you are not divorced. Georgia does permit legal separations. Typically, the court will handle issues of property division and child-related matters by prior agreement of the parties, or after a hearing on a motion for temporary orders. The order will then serve as your legal separation.
As long as there is a marriage (even though it has been difficult or even unsafe), both spouses should be able to claim that they are married in a legal sense. This may be important for many reasons, but most importantly, to file a legal separation, you need to be legally married.
The legal separation begins and ends within the court system. There is no such procedure as a legal separation itself, but some states have a separation of church and state , so to speak, where the court will determine that the spouses are separated for a period of time, granting the spouses certain rights in the event of reconciliation.
Georgia is similar to other states in allowing legal separation, in that it does not have a period of separation that is required. You can be separated overnight or for a year, leave the state or travel for a month.
You can obtain an interim support order for yourself and/or your children during the separation. In Georgia, you may be eligible for spousal support and child support, depending on the circumstances of your case.
One of the main benefits of pursuing a legal separation rather than a divorce is you can remain legally married and thus entitled to any benefits including taxes, life insurance, health insurance, pensions, and social security.

Advantages of a Legal Separation Agreement

When does separation before divorce make sense? Although Georgia separation and divorce have some commonalities, this blog post will focus on the benefits of a legal separation agreement. Many people ask me why they would want to be legally separated instead of divorced, and there are several answers:

• A couple can remain married for tax purposes. Occasionally people just want to avoid the marriage penalty when filing their federal taxes.
• Couples may want to pass a trial employment period before making any long-term commitments about support and distributing their assets. This can be especially true if an employer has offered an employee a job in another city as a lateral move or promotion. Occasionally if the spouse has been a stay-at-home parent, they will need time to transition back into the workforce or relocate, and separation allows the employed spouse to provide funds for their needs and for the needs of the children to be met and still allows for a trial run of the benefits or drawbacks to their proposed move.
• It gives the parties time to decide if they really want a divorce and allows each person the chance to see if he or she misses the other spouse.
• If the parties can reach a legal separation agreement settling their property, finances, custody and support, they will have a written record which will typically be filed away in case they need to raise it with the court years later. This can come in handy when former spouses are trying to enforce or modify their prior agreements after the divorce decree is entered.
• Parties who agree to one wife keeping her maiden name and retaining her ability to own certain property may find it uncomfortable to introduce the new surname in public documents until after the number of years are completely over. For example, in a legal separation agreement, one wife kept her former marital surname professionally. For at least ten years after their divorce, she continued to use the prior surname on her academic articles, resumes, etc., in applications for grants and other professional matters.
• Many people do not know that remarried couples may still have some access to retirement plans after the divorce or separation because they are considered co-owners of all acquired property during the marriage. Spouses should check with human resources and pension plan advisors if they want to retain their vested rights to their former spouses’ retirement benefits after the marriage ends.
• A legal separation agreement may be a good way to explain more complex reasons for the divorce to the children, such as a spouse’s unpopularity at work causing the spouse to relocate or more direct issues like alcoholism which may be difficult to discuss with children.
• A legal separation agreement often provides for the payment of retention bonuses. When an employee has a retention bonus, the offer usually lapses immediately after the separation date and often leads to a forfeiture of the bonus itself, and the agreement makes clear the conditions and expectations for separating or staying in the position which is being offered to the employee for the salary/family/employment/locational/caregiving/friendship sacrifice.

Process of Creating a Legal Separation Agreement in Georgia

When a couple decides to pursue a legal separation, it is important to understand the process of drafting a separation agreement that can provide a solid foundation for future actions. Once the decision is made to separate, the couple must create a legally binding contract that outlines key agreements regarding their assets, liabilities, child support, and child custody. This can be a complex process that requires a thorough understanding of each party’s rights and obligations under Georgia law.
The first step in the process is gathering all relevant documentation about assets, debts, and details related to the children, if applicable. The parties should create an inventory of their possessions and assets, including all real estate, vehicles, certificates of deposit, bank accounts, credit cards, and retirement accounts. It is also important to gather evidence of the parties’ income, tax documents, and any other relevant information that may be used to fairly negotiate the terms of the separation agreement.
Once the parties have collected all of their information, they will need to determine how to divide their property fairly. A family law attorney can assist in navigating these often difficult negotiations. It is important to remember that Georgia law places a high value on equitable distribution of assets, so couples should seek to divide assets in a way that is fair and balanced. The parties must also determine how to divide their liabilities – if there are any joint bank accounts, credit cards, or loans, they should negotiate who will be responsible for repayment of these debts.
If the parties have children, they must consider issues such as child custody, parenting time, support, and health care expenses. It is vital to address these matters in the separation agreement because Georgia law mandates the submission of a parenting plan detailing issues such as decision-making authority, residential and school arrangements, and visitation. After carefully reviewing these issues and working to resolve potential areas of conflict, the next step is drafting the separation agreement and signing it.

Main Terms of a Separation Agreement

A legal separation agreement may include a wide range of provisions. Georgia does not have laws that address each of these components. As such, your separation agreement will likely be governed by any applicable laws that have been construed with respect to premarital agreements in addition to general contract law principles.
As a "general rule," legal separation agreements must be voluntary, made of consideration, not unduly one-sided, and in writing. A legal separation agreement should clearly define the scope of the agreement. It most certainly should contain clauses addressing issues such as property division, child custody and child support, and, if applicable, spousal support.
Property Division — Property division clauses will specify how property and assets will be divided if the parties later divorce. The terms of the separation agreement normally determine the ultimate property division terms if the parties later divorce. If the terms of the separation agreement are different from the terms in the divorce decree, the terms in the divorce decree will govern.
Child Custody — Separation agreements that address child custody must ensure that the best interests of the child are accounted for. Legal separation agreements that address child support may also directly dictate the child support terms in a future divorce. Because child support in Georgia is primarily mandated by statutory law, courts generally do not have the discretion to grant deviations outside of the Formula Amount. As such, the legal separation agreement provisions with regard to child support should include a provision stipulating that the Formula Amount is payable. The parties are free to allocate child support payments, however. There are a variety of ways to allocate payment of the Formula Amount, including offsetting other expenses.
Spousal Support — Georgia law encourages parties to enter into contracts regarding spousal support. Spousal support contracts are enforceable if they comply with general contract law principles. Any contract that is vague and lacks specificity will likely be construed against the party that drafted the agreement. The specific terms of a spousal support contract should be clearly and specifically defined in the legal separation agreement.
Other Clauses — There are a wide variety of additional clauses that may be incorporated in a separation agreement. These may include:
During the legal separation process, you should consult with an experienced attorney from the Gentry Law Firm, PC.

Legal Separation Agreement Vs. Divorce in Georgia

In Georgia, there is no legal status as "legally separated". Many people have heard that if they don’t want to get a divorce from their spouse, they can get a legal separation. This is not true in Georgia. There is no such thing as a legal separation in Georgia.
For some Georgia residents who are separating from their spouse, it is important to consider a legal separation agreement. In fact, if you are fairly certain that you do not want a divorce, but your spouse is contemplating filing for divorce and living in Georgia, you may want to consider a legal separation agreement to protect yourself.
A separation agreement is a written agreement between spouses outlining the rights and obligations that each party has with respect to the other after they have separated with the intention that the parties’ agreement will be approved by a Court and incorporated into an Order of the Court. Once the separation agreement is approved by the Court, it then has the force and effect as an Order of the Court. The contractual provisions set forth on a separation agreement are enforceable in a subsequent contempt action against a spouse that is not abiding by the terms of the contractual agreement.
The separation agreement can set forth and divide marital assets and debts, designate who is responsible for certain debts and liabilities, provide future maintenance to one of the parties, set forth a parenting plan for minor children of the marriage and provisions for visitation with the minor children, determine the primary residence of the children, determine payment of child support, and set forth the parties intent that they are not going to interfere with the other parties relationship with the children.
Although at one time there was a provision in the Georgia statute allowing for an interim award of alimony to one spouse while the divorce action proceeded through the Court system, the statute was removed from the law some years ago. Therefore, under current Georgia law, the parties must be before a Judge in order for alimony to be awarded to one of the parties. For that reason, many people who want to obtain a divorce for some reason do not want to go through the process of obtaining a separation agreement.
If you are contemplating separation from your spouse, you should first consult with a Georgia Divorce Lawyer to determine which options will be best for you.

Enforcing a Legal Separation Agreement

Enforcing the Divorce Settlement Agreement via the Court System
If you’re legally separated by agreement and the other party is not complying with the agreement, you can file a contempt action in the court system. When you file a contempt motion, it’s asking the court to find the other party in contempt of the agreement, which is a court order. The contempt proceeding will judicially determine whether the aggrieved party did, in fact, violate the agreement and whether they will be held in contempt of court. If the court finds the other party in contempt, the judge will typically have them make up for any financial shortfall in separate property obtained during the marriage. For example, a year’s worth of past-due spousal support or child support could be met via the sale of a marital home where you now own a percentage and the other party is the sole occupant. Or your settlement agreement could designate that the home will be sold at a certain date. If that date passes by without compliance, the court could order the sale. Essentially, a contempt proceeding solidifies the divorce settlement agreement, so that you get the benefit of the deal that you cut with the other party – the deal you both signed in front of a notary public and had filed with the clerk of the court . A cessation of marital status from a date specified in the agreement will not give someone the ability to "play possum" and circumvent the obligation under the agreement. As long as the dissolution of marriage is from a date prior to the agreement, the terms will be enforced, even if the divorce settlement agreement was signed after the date of actual separation.
The Court’s Role in Legal Separation Agreements At the time of the divorce settlement agreement, you may request that the court deem the agreement to be ratified by the court, so any disputes will be resolved by the judge at a hearing when necessary. In this regard, the judge’s signature is somewhat meaningless, because the case was already filed with the clerk of the court. Furthermore, the court could approve the settlement agreement because the parties signed a form used by the court system – specifically a "Marital Settlement Agreement" [form 20 – English, 21 – Spanish] from the Georgia Institute of Continuing Legal Education. If form 20 or form 21 is signed by the parties before a notary corporation and filed with the clerk of the court, the court will accept as an order from the judge.

Amending a Legal Separation Agreement

A legal separation agreement in Georgia may be modified by the Court upon Motion of either party. Typically, the Court will modify such an agreement when there has been a substantial change in circumstances after the separation agreement was made. Please keep in mind that it is not enough to merely show that one party wants to change the agreement; a substantial change in circumstances must also have occurred after the separation agreement was made. If the Court finds that there has been a change in circumstances since the separation agreement was made, the Court will then decide if the separation agreement should be modified to fit the new circumstances.
Deciding if there is a substantial change in circumstances is decided by the Court by looking at the same criteria as used in determining if there has been a substantial change in circumstances justifying modification of a divorce settlement agreement.
Section 2-4 (c) of the Georgia Code states that if the Court finds that there has been a change since the separation agreement was made, "the court may then modify the terms of the separation agreement which are incorporated into this order and which are related to the issue of child support, visitation, or access of children under the age of 18 years old or the issue of spousal support or alimony."
If the Court does find that there has been a change in circumstances and that the separation agreement is to be modified, the Court is left with the same options as in a divorce case as to how specifically to modify the support. The Court may adjust either party’s child or spousal support to reflect the new circumstances. The Court may also decide not to modify any of the provisions in the separation agreement.
The moving party will usually be required to pay the costs of the action.

Getting Help with Separation Agreements

A legal separation agreement, despite its commonality, can be a complicated document that has the potential to bind parties to obligations long after the marriage is over. Therefore, prior to executing a legal separation agreement, it is highly advisable to seek the assistance of a family law attorney to ensure that the agreement is fair, comprehensive and legally enforceable. Separation agreements should provide for control of the marital estate to ensure that neither party depletes the value of the estate during a period of separation. For instance, if one party is required to make payments for debts, and those payments reduce the assets of the marriage, there should be an offset credit to the paying party so that the deduction does not unfairly disadvantage that party from equitable division of the estate in the future. It is also important to consider whether one party will be entitled to alimony based on future circumstances. For instance, will one party be returning to school? Will the other party lose their job or change jobs? Without any of those changes having occurred in the future, will either party work full time? The intent of the parties should be to cover all possibilities within the executed agreement, as it may be difficult to prove that the parties intended to include certain future events in the agreement even after they have occurred. It is also important to seek the advice of a family law attorney to ensure that you are bound by the Period of Limitation on Creditors for your separation agreement. A period of limitation is a legally-established period of time during which an agreement must be enforced. Otherwise, the agreement does not hold up in court. In the case of separation agreements, the creditor’s period of limitation is created by statute and runs against third parties for three years following the date of execution of the agreement. Once the agreement is three years old, a creditor could enter into an agreement with a spouse knowing that the parties to the legal separation agreement are unable to enforce their separation terms. Therefore, it is beneficial to be represented by an attorney who can file the agreement in order to bind any future creditors.

Common Questions About Legal Separation in Georgia

What is a legal separation in Georgia?
A legal separation is essentially a divorce without the divorce. In other words, it allows you to live apart from your spouse while still legally married. You will have to work out some issues between the two of you and have the agreement made legally binding by a judge.
Do you need a lawyer for legal separation in Georgia?
While it is not required by law to hire an attorney to help with a legal separation, there are a number of benefits to doing so. An experienced family law attorney can help you negotiate a fair separation agreement by listening to your needs and making sure you understand what is required under Georgia law.
What are the requirements for legal separation in Georgia?
One of the spouses will need to go file a case with the court in the county where the couple last lived together. There will be some paperwork to fill out, including a domestic relations case filing information report, a summons form to notify your spouse of the action and a verification form that simply states under oath that the representations in the complaint are true. You will also have to furnish a certificate of divorce after you have lived apart from your spouse for 12 months, as well as a case initiation checklist and a report of divorce.
What does legal separation mean legally?
In Georgia, legal separation can only be pursued by filing an action for divorce and attending a hearing to get a divorce before you can get a legal separation. That said, you can get a formal separation agreement from the court by filing an action for separate maintenance , which is not a divorce but indicates that there are issues to be addressed in court.
Does legal separation mean you are divorced?
No, legal separation means you are still married. It just means you are living apart from your spouse. A legal separation agreement will address how things will be handled during the period following the separation so that when you reach a final divorce agreement, it will cover everything you have already discussed and agreed to.
Is a legal separation right for me?
There are many advantages to legal separation. Some couples are not yet ready for divorce, while others feel strongly about preserving their legal status until divorce can be finalized. For some, the religious component is an important factor. Legal separation may also make sense from a financial perspective, as some employers and government programs count legal separation as a qualifying life event that allows you to add coverage for your spouse and/or children. Generally speaking, a legal separation offers similar benefits and protections as divorce while allowing for the time and space you need to figure out what you want for the future.
Does a legal separation protect my assets?
A legal separation agreement is a private contract between both spouses. It does not distribute marital property. Instead, the legal separation agreement allows you to decide how to divide everything with your spouse. The only time the court gets involved with dividing property is if one of the spouses wants to ask the court to divide property after the fact.