In Georgia, a separate maintenance action sometimes referred to as a “legal separation,” can be an alternative to divorce but may not provide everything you are seeking.
Given that separate maintenance actions are somewhat uncommon, the appellate courts in Georgia have not had the opportunity to provide clear answers to every question that may come up in a separate maintenance case.
If you are considering pursuing a separate maintenance action, you should be aware of the gray areas in the law. This is especially true if your case will be contested, meaning you and your spouse do not agree on every issue and the judge will have to decide those issues that you do not agree on.
Here is How a Divorce is Different From a Legal Separation Georgia
What can a judge order in a separate maintenance action?
A. Alimony and Child Support
As with divorce cases, Georgia courts can award child support and alimony as part of a legal separation action. Although Georgia’s separate maintenance statute does not use the term “child support,” the courts have made clear that a judge may award alimony and / or child support in a separate maintenance action. The child support statute also recognizes that child support may be awarded in separate maintenance actions.
That statute provides for the duration of a child support obligation imposed “in any temporary, final, or modified order for child support with respect to any proceeding for divorce, separate maintenance, legitimacy, or paternity.” An order for alimony or child support can be changed if either party files for divorce during or after the separate maintenance case. Any final order for support issued in the divorce would supersede any previous order for separate maintenance.
B. Child Custody
Like in divorce cases, child custody can be decided in legal separation cases in Georgia. The separate maintenance statute does not specifically reference child custody. However, Georgia’s superior courts are authorized to award custody of children in separate maintenance actions. This is true even if you do not include a written request for custody in the petition for separate maintenance that you file with the court.
Georgia’s child custody statute is applicable to “all cases in which the custody of any child is at issue between the parents” and is not limited to divorce actions. Likewise, the statute permits modification of custody “[i]n any case in which a judgment awarding the custody of a child has been entered.” If the court grants a legal separation and awards custody of the children to one parent, the custody award can be modified in a later divorce action, but only if the divorce is filed in the county of residence of the person who has been awarded custody.
C. Property Division
One main difference between a divorce and a legal separation in Georgia is that Georgia law does not authorize division of marital property in legal separation cases. The appellate courts have indicated that a claim for division of marital property can only be filed or maintained in divorce proceedings. However, the appellate courts have not actually addressed this issue directly in a separate maintenance case. The cases where the appellate courts have said that a divorce is the only avenue for equitable division of marital property are not separate maintenance cases; instead, they involve estate disputes.
Segars v. Brooks
In Segars v. Brooks, the administratrix of the deceased Wife’s estate petitioned for an equitable division of Wife’s and Husband’s marital property after Wife was murdered (allegedly by Husband) during the course of their divorce proceedings. The Court decided that even though the Wife had asked for an equitable division of marital property in the divorce action, her estate could not pursue that claim after her death.
The Court held, “[a] claim for equitable division of property cannot be filed or maintained separate from divorce proceedings … no divorce means no equitable division of property.” In another case, one Justice referenced Segars v. Brooks and noted that while alimony may be awarded in a separate maintenance action, equitable division of property may not be awarded unless a divorce is filed – “even when the spouse seeking such allocation is murdered by her husband during the pendency of an action for divorce and ‘equitable division.’” So it seems that the rule against a court dividing marital property outside of a divorce case is fairly strict.
But is that rule meant to apply in separate maintenance actions or only estate disputes, like the Segars case?
This issue arose in three separate appeals involving the same couple, known as the Goodman cases. The Goodmans filed for legal separation and reached an agreement that included how they would divide their property. The judge in the legal separation case adopted their agreement and granted the legal separation, making the agreement on division of property a part of the court’s order. Neither party challenged the judge’s authority to include the division of property in the legal separation order at that time.
It was only later, when the parties divorced, that the question of whether the judge in the separate maintenance action had authority to divide the parties’ property was presented to the Court of Appeals. But the Court of Appeals did not answer this question. Instead, it found that because the Wife had relied on and sought to enforce the legal separation order that divided property in the first appeal of the divorce order, she could not claim that the legal separation order was improper in the second appeal.
So the question remains, when the Georgia Supreme Court said “no divorce means no equitable division of property” in the Segars case, was that meant to apply to separate maintenance cases?
If you are considering seeking a legal separation, it is important to be aware of this uncertainty. In a legal separation case, it is possible the judge will interpret the law to mean that he or she cannot order any division of marital property, even if you and your spouse agree on how to divide everything. The judge may decide to award custody, child support and alimony but decline to issue an order declaring which assets (or debts) will belong to which party.
This would mean that all marital property (property acquired during the marriage except through gift or inheritance) would remain the property of both you and your spouse. The marital property could potentially be divided later if a divorce is filed, but there would be nothing preventing you or your spouse from selling, transferring or dissipating assets so long as a divorce was not pending.
If you are concerned about what your spouse may do with certain assets, it is important to consider all options and weigh the risks before deciding whether to pursue a legal separation or a divorce.
Margaret Simpson is an attorney at Atlanta divorce and family law firm Boyd Collar Nolen Tuggle & Roddenbery. She focuses her practice exclusively on family law matters including divorce, alimony, asset division, child custody, child support, contempt and modification actions, as well as legitimation and grandparent visitation cases. www.bcntrlaw.com