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Separate Maintenance

Recent Georgia divorce case phases out supervised visitation through three month transition period

Friday, November 11th, 2011

The Supreme Court of Georgia recently heard a case dealing with supervised visitation that was to be phased out through a transition period. In Sigal v. Sigal, before filing for divorce, the mother first filed a petition for separate maintenance. Sigal v. Sigal, S11F0835 (2011). In the decree from that case, the mother was granted primary custody and the father’s visitation was required to be supervised as a result of his documented drug and alcohol abuse problems. Id. at 2. The mother subsequently filed for divorce and “asserted that all issues regarding custody, visitation and support of the children were fully adjudicated in the decree of separate maintenance.” Id. The father disagreed and sought “reasonable and fair unsupervised visitation” with the children. Id. After hearing testimony from both parties, the trial court orally announced its ruling, holding that the father could have unsupervised visitation provided that he took and passed a drug test within the next 45 days and provided that the unsupervised visitation be phased in over a three month transition period. Id. at 3-4.

For reasons unknown, the final divorce decree was not entered for several months, though the visitation provision was entered nunc pro tunc from the date of the hearing. (This means that the visitation provision went into effect as of the date of the hearing, rather than the date of the final divorce decree). Id. at 4-5. As a result, the three-month transition period had already expired by the time the final decree was entered. Id.

For this reason, the mother appealed, and the Supreme Court of Georgia reversed the trial court’s ruling. The Court held that “the nunc pro tunc action as to the gradual transition provision in the decree here did not serve to conform the decree to the truth or the justice of the situation as originally intended by the trial court.” Id. at 7. “Rather, it had the exact opposite effect by eliminating the truth and justice recognized by the trial court…regarding the need of these children for a gradual transition period from supervised to unsupervised visitation with their father.” Id. at 7-8. For this reason, the trial court abused its discretion in making the visitation provision nunc pro tunc.

Can I be legally separated from my spouse in Georgia?

Monday, October 20th, 2008

In some states, such as California, spouses can be legally separated from one another. Unfortunately, Georgia does not honor legal separations. If you and your spouse, however, wish to be separated, but do not wish to file for divorce, there is another option.

According to O.C.G.A. § 19-6-10, you can file what is called a separate maintenance action when there is no divorce action pending between spouses. A separate maintenance action is very similar to a divorce in that you and your spouse will enter into an agreement resolving all issues from who will have custody and visitation rights for minor children to how debts will be paid and the amount of alimony and child support that may be appropriate in a case. In short, all issues that could be addressed in a divorce can generally be addressed in a separate maintenance action with the obvious exception of a formal divorce decree being entered into between the parties.

The advantage of a separate maintenance action and agreement is for when the parties really want to keep working on their marriage (or don’t want to get divorced at this time for some reason). It can provide financial and emotional security and clarity to the parties as to what a post-divorce world would look like while enabling the parties to attempt to reconnect and work on their relationship. In the event that the parties are unsuccessful, the separate maintenance agreement can even be incorporated into a divorce settlement agreement to avoid additional costs in the event of a party electing to pursue a final divorce.