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A legal state of separation means an intentional suspension of marital relations between a husband and wife without the dissolution of marriage entailed in a divorce. Neither spouse is required to leave the home space in order for the separation to be valid.
Jurisdiction, venue and residence requirements are basically the same as in a divorce case with several important distinctions, such as the fact that the six month residency requirement required for divorce does not apply in the case of a separation in Georgia.
The court’s authority to award alimony to spouses or minor children is the same as in divorce cases, including in regards to expenses of litigation. Likewise, the court will take jurisdiction over minor children and may award custody to either party or to a more qualified third party, as deemed necessary by the particular case.
Nature of Separation
A separation is intended to suspend the marital relations of parties involved without dissolving the marriage. It is not necessary that either spouse leave the home for this to occur, however spouses must be sleeping in separate places with the intent of suspending conjugal relations. The suspended conjugal rights include the company, cooperation, assistance, aid, and intimacy of the other spouse in every conjugal way. Spouses have no right to interfere with the person or property of the other party in any way during this period.
The failure to have marital relations itself does not show conclusively a bona fide separation.
Georgia law also requires there be no pending action for divorce between the parties in this state.
Obligation of Spouse
Either spouse may be obligated to pay alimony, either temporary or permanent. Alimony will be awarded based upon the needs of the payee and the ability of the payor to pay.
It is the joint and separate duty of each parent to provide for the maintenance, protection, and education of his or her children until each child reaches the age of majority, dies, marries, or becomes emancipated, whichever occurs first, unless the responsibilities of one or both parents is further defined in court.
Enforcement and Effect of Separation Agreement
Separation agreements typically are later incorporated into final judgments and divorce decrees. However, the agreement remains enforceable and valid as a simple contract even if it is not incorporated into a further decree.
Divorce after Separation
Ordinarily, a suit for separate maintenance is subject to dismissal or abatement upon the subsequent filing of a divorce action (O.C.G.A. § 19-6-10). However, if no determination of alimony is made in the divorce action and there was an award of alimony in the separate maintenance action, the prior award is not abated in the divorce.
Property that was awarded as the result of a separate maintenance action becomes part of each individual’s property and is not subject to further judgment in the case of divorce.
Thus, when agreeing on the terms of the separation, be careful about what you accept, since those terms could carry over in the event of a divorce and thus become permanent.
Persons involved in a separation may not remarry until a divorce has been granted.
When the husband and wife reconcile and resume cohabitation, the marriage is restored as if the separation had never occurred and thus both parties assume all duties, obligations, and liabilities as required under the law. Reconciliation does mean that alimony agreements are set aside, but it does not require any party to give back any property or alimony that was received during the period of the separation.
Coleman Legal Group, LLC team of divorce and family law attorneys handles cases in the following cities and communities: Atlanta, Alpharetta, Roswell, Johns Creek, Milton, Cumming, Marietta, Sandy Springs, Woodstock, Kennesaw, Gainseville, Norcross, Lawrenceville, Midtown, Inman Park, Duluth, Buckhead, Dunwoody, Vinings, Old Fourth Ward, Sugar Hill and Smyrna.
Our dedicated team of divorce and family law attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette and Clayton.
Coleman Legal Group, LLC’s Georgia lawyers practice in the areas of Divorce, Family Law, Bankruptcy, Immigration and Business Law. We have two convenient offices located at:
Alpharetta Georgia Office
5755 North Point Parkway
Alpharetta, GA 30022
Atlanta Georgia Office
659 Auburn Avenue Northeast
Atlanta, GA 30312
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