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Separate Maintenance

Georgia law does not recognize the concept of “legal separation.”  However, for those in Georgia who wish to remain married but live separately and apart, there is a legal action called Separate Maintenance. Separate maintenance is a domestic relations action in Georgia that may be filed by either spouse. An action for separate maintenance is similar to a divorce action in that it results in the resolution of all the issues that would be settled in the event of divorce. However, separate maintenance is different from divorce in that, although the parties will be separated, the marriage is not completely dissolved. See Southward v. Southward, 265 Ga. 671 (1995).

For those in Georgia who wish to remain married but live separately and apart, there is a legal action called Separate Maintenance.

First, in order to seek separate maintenance, a valid or legally recognized marriage must exist. Boone v. Boone, 192 Ga. 579 (1941). Second, the parties must be living separately in a bona fide state of separation. This separation may be due to an agreement between the parties or due to misconduct on the part of one of the parties, like adultery. See O.C.G.A. §§ 19-6-10 and 19-6-4.  Third, there must be no pending action for divorce between the parties. O.C.G.A. § 19-6-10. A pending action for divorce between the parties will supersede any action for separate maintenance that either party attempts to initiate.

Procedurally, separate maintenance actions are similar to divorce actions in several ways. Separate maintenance actions are initiated like divorce actions, with a Petition filed by the party wishing to begin the proceeding. The petition must be served on the defendant personally, either by sheriff or by private process server, just like a petition for divorce. Stallings v. Stallings, 127 Ga. 464 (1907). However, unlike divorce actions, the petitioner is not required to be a resident of the state of Georgia for six months prior to filing the action. O.C.G.A. § 19-5-2. Additionally, separate maintenance actions are similar to divorce actions in that child support, alimony, child custody and other legal issues that may be determined during a divorce action via a court order may also be resolved during a separate maintenance action via a court’s order. See O.C.G.A. § 19-6-1 et. seq, Breeden v. Breeden, 202 Ga. 740 (1947).  

The one important distinction between divorce actions and separate maintenance actions is that although alimony, child support and custody may be determined, the marriage between the parties is not dissolved and remains intact. This major distinction makes separate maintenance the perfect option for couples who do not wish to totally sever their marital bond, but who find it difficult to maintain a marital household together. Often, couples who have moral, religious, or ideological disagreements with divorce seek this option in lieu of divorce. Additionally, couples who need to remain married for the purpose of health coverage or other benefits but who do not wish to continue residing together in a marital home seek orders for separate maintenance.