Separation of Spouses

Separate Maintenance Actions and Separation Agreements

The Purpose of Separate Maintenance or Separation Agreements:

After spouses have separated but prior to a divorce, one spouse may file a Separate Maintenance action to have a Court establish spousal obligations (i.e. alimony or child support)   Separate Maintenance action may be sought by spouses, together, upon agreement to resolve issues while the spouses live

Under a Separation Agreement, Husband and Wife can remain legally married, live separately, and may work out an agreement regarding issues such as child support, alimony, child custody, and property division during the separation.  These are the same issues that must be resolved by divorce.

In a Separate Maintenance Agreement, the spouses may resolve financial and property issues basically any way they may agree.  However, the issues of child custody and child support must be reviewed by a court before they become legally binding.  The Separate Maintenance Agreement is submitted to the Court in an uncontested Separate Maintenance action for the purpose of incorporating the Agreement into a court order.  When the Agreement becomes a court order, it is enforceable by contempt.

Typically a Separate Maintenance agreement suspends conjugal rights including the company, cooperation, assistance, aid, and intimacy of the other spouse. Also, neither spouse will be at liberty to interfere with the other’s person or property. The Separate Maintenance Agreement typically designates exclusive use of the marital residence to one spouse, but Georgia allows separate spouses to co-habitate during a separation.

Separate Maintenance v. Divorce

The primary differences between the results of Separate Maintenance and a Divorce is that (a) Husband and Wife can continue to receive the benefits of their legal marriage, such as health insurance or joint tax filings, and (b) the parties may reconcile at anytime and revoke or rescind a separate maintenance agreement, and return to their marriage. Separate Maintenance Agreements are often preferred to divorces by parties who see a possibility of reconciling after a separation period or do not want a divorce for religious/other purposes.

Issues in Separation of Spouses

Division of Marital Property

During a separation, marital property may be divided by agreement, or by court or jury in a separate maintenance action.  Oftentimes the marital residence, vehicles, and assets, such as bank accounts, need to be divided even during a separation.

Spousal Support

“Spousal Support” may be agreed to or awarded by a court or jury on a temporary basis during a separation.   The purpose of spousal support is often to allow a spouse with less income-earning potential to obtain an education or develop skills, find adequate employment, and/or to continue to enjoy the quality of life enjoyed during the marriage.  Spousal support is to be awarded to either spouse in accordance with the needs of the spouse and the ability of the other spouse to pay.

Child Custody and Visitation

The fundamental concern of Georgia’s legal system in child custody is “what is in the best interest of the minor child.”

There are two aspects to child custody: Legal Custody and Physical Custody.

Developing a custody plan, often referred to as a “Parenting Plan,” can be a challenge for separated or divorcing parents.  Parents naturally have their own parental interests in mind and may also have potentially differing definitions of their child’s best interest.  Parenting Plans demand careful consideration of the needs of a child balanced with the practicalities of parenting.

Child Support

Separated parents are obligated both to their child and to society to support their child.  Georgia law mandates the use of a Child Support Worksheet in determining the financial, child support obligations of parents, and separated parents must submit Child Support Worksheets to the court in separate maintenance actions with children.  Child support is calculated based upon parents’ gross monthly income, and adjustments and deviations for other expenses of the child paid by parents.

Other Issues

Issues related to health insurance, taxes, family violence, and attorneys’ fees may also be determined in a divorce action.