Legal Separation Prior to Filing a Divorce in Georgia

In order to file a divorce in Georgia, you first have to be legally “separated”. But this does not mean that you or your spouse has to move out of the marital residence. Under Georgia law, you simply have to suspend “marital relations” with the intention to divorce. Parties can be legally separated while living in the same household. There is no requirement that there be a “separation agreement”, in writing or verbally, although an agreed or verifiable date is best. And there is no specific time period required, although at least 30 days is recommended. So, if you live in Georgia, you are legally separated if either spouse moves out, or moves into another bedroom, with the intention to file divorce.

In Blasingame v. Blasingame, 249 Ga. 791 (1982), the Supreme Court noted: “Marital separation means a suspension of marital relations between husband and wife without dissolution of the marital relationship. The suspended conjugal rights include the company, the cooperation, assistance, and intimacy of the other spouse in every conjugal way ... It is not essential that the husband or wife should leave the marital homeplace; separation can occur when one spouse moves into another room with the intent and purpose of suspending conjugal rights.”

In order to divorce, the separation must be maintained. If “make up relations” occur, temporary support agreements, and the divorce generally if a complaint has been filed, are compromised. “Georgia law provides that voluntary cohabitation shall set aside all provisions made for permanent alimony of a spouse …. However, the effect of cohabitation is to nullify only future obligations for permanent alimony and does not require the spouse to return any property or payment already received.” See, McConaughey’s § 2:24.

And the specific date of the separation can be important. So, it is best that a divorcing spouse sets a date that is easily verified. For example, it can be January 1st, or the date one spouse moves out, or it can be the day after a memorable fight or incident prompting separate bedrooms.

As a general rule, after separation, evidence of support payments is inadmissible. See, McEachern v. McEachern, 260 Ga. 320 (1990) (Evidence of post separation support payments is not admissible in a divorce case unless the evidence should be permitted for impeachment purposes to prevent a fraud). The Court’s focus is on the current financial circumstances of the parties at a final trial, which may be a year or more after the case is filed. The Georgia Supreme Court has also recognized that temporary support agreements may not be realistic “in the long run” and such agreements have been excluded at a final trial on the theory that they may mislead or confuse the jury. See, Horton v. Horton, 288 Ga. 17 (2010pos).

If a spouse is seeking to reduce historic support, the specific date of separation is especially important. In this situation, the obligated spouse will usually want to push back the date of separation as much as possible to exclude evidence of voluntary payments. The spouse receiving support will typically argue the “separation” alleged was not a legal until later. Support payments made prior to legal separation are admissible, and the actual date of separation, if disputed, is a question of fact. See, Groover v. Groover, 279 Ga. 507 (2005).

So, again, it is best to pick a clear date and stick to it. As this date can impact support payments, you will want to consult Atlanta Divorce Attorney Russell Hippe before making this decision.