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Legal Separation

Legal Separation

Divorce trials have the potential to be long, drawn-out, difficult, and expensive battles which often leave both parties emotionally bruised and battered. As a result, many couples have begun to choose litigation alternatives such as mediation or arbitration. Sometimes, couples seek to avoid the litigation process altogether by either opting for separation or a separate maintenance action.

Legal separations generally involve husbands and wives who live apart according to the terms of a court order or separation agreement. The primary reason couples choose legal separation in lieu of remaining informally separated is because legal separation provides certain protections. Despite the benefits of legal separation, it is not legally recognized by Georgia law. For those who wish to separate from their spouse but do not wish to divorce, there are two available options:

Options:

Informal Separation

Although Georgia law does not legally recognize legal separation, this does not prohibit couples from separating informally. During the separation period, couples may remain informally separated or determine that seeking a divorce or a separate maintenance action (discussed below) is the most appropriate course of action. There are several reasons a couple may remain separated in lieu of seeking a divorce:

  • To meet the 10-year requirement for social security benefits. If a marriage has lasted 10 or more years, a divorced spouse may be entitled to social security benefits equal to the greater of: 1) those based on his or her work history, or 2) 50 percent of what his or her ex-spouse is entitled.
  • To continue receiving health insurance benefits under the other spouse's health plan. Since most employer sponsored health plans will no longer cover an employee's ex-spouse, couples may chooose to remain married but separated so a spouse does not loose medical insurance coverage.
  • To take advantage of potential tax benefits from filing jointly.
  • To retain certain military benefits.

Separate Maintenance

Georgia law permits a separate maintenance action for spouses who wish to remain legally married but also live separate and apart. A separate maintenance action is similar to a divorce because issues of child custody, child support, equitable division, and alimony may be resolved either by agreement between the spouses or by the court.

By seeking separate maintenance in lieu or remaining informally separated, each spouse may establish the financial and emotional security that is not provided through an informal separation. See our article specifically addressing Separate Maintenance actions for more information: Separate Maintenance actions in Georgia.

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