Divorce versus Separate Maintenance in Georgia

Posted On May 14th, 2020 by Michael Dunham

A client recently asked me a question I actually get fairly regularly:

“What’s the difference between a divorce and a legal separation?”

There is actually no such concept as a “legal separation” under Georgia law. It is true that, as a condition precedent to filing a divorce action, the parties must be “living in a bona fide state of separation”, but this legal concept has been very broadly interpreted and essentially refers to a mental or emotional state. While it is obvious there is a “separation” when one party moves out of the house, it is possible to be living under the same roof and even sleeping in the same bed and be “separated” for purposes of filing a divorce action. But there is no “legal separation” or need for an order to that effect.

One relatively unique creature of law that Georgia does recognize is a decree of “separate maintenance”. While I typically recommend against a separate maintenance decree (spoiler alert), to understand why, it may be helpful to understand what a divorce actually does.

No matter how complicated, drawn-out, high-profile, or high-conflict a divorce case ever is, the court only has a maximum of five things it will do in the case:

  1. The court will resolve all property issues, including a determination of what property is “marital” or “separate”, and then making an equitable division of the marital property and an award to each party of his/her share.
  2. The court will decide whether one party should pay the other party alimony or spousal support, and if so, how much and for how long.
  3. If there are minor children, the court will resolve issues of child custody, including parenting time schedules and other logistical issues.
  4. Also if there are minor children, the non-custodial parent will be required to pay child support to the custodial parent, which the court will determine under applicable legal principles.
  5. Finally, having decided all of the above, the court will dissolve the marital contract.

Every conceivable issue in a divorce case falls under one of the above areas. In a separate maintenance case, though, the court will determine the first four issues above, but will not dissolve the marital contract. In other words, a separate maintenance decree functions, for all intents and purposes, like a divorce decree, except the parties are still married. This means that if either party wants to remarry later, he/she still needs a divorce to be able to legally do so. It also means that if a party to a separate maintenance decree has sexual relations with a third party, then he/she is committing adultery.

A separate maintenance decree may be appropriate for someone who has strong religious convictions precluding divorce. This is, of course, a deeply personal decision that should be respected. But my opinion is that parties considering a separation from their spouses should proceed with a divorce.

A separate maintenance decree may also be appropriate in certain circumstances where one party may become uninsurable if he/she loses the coverage provided through the other spouse’s employer-provided insurance. With the passage of the Affordable Care Act several years ago, which made it illegal in most circumstances to deny coverage for pre-existing conditions, this has become less of an issue, but if it is an issue in your case, I would urge you to consult with a qualified health insurance agent in determining what coverage options might be available after a divorce, before consulting with qualified divorce counsel.

Nothing in this article is intended as legal advice specifically for you, the reader, but if you have any questions, I would love to discuss – you may contact us at any time.