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Divorce, Annulment and Separate Maintenance in Georgia | Georgia Attorneys

Should the time come that a married couple no longer wants to be together, they may have some questions about their options regarding divorce, annulment or separate maintenance. Some couples automatically assume that divorce is the only way, but there is also the option of legal separation – and is some rare instances an annulment of the marriage is possible.  Below are some frequently asked questions our clients ask in regard to Georgia legal separation, annulment and divorce cases that can help you make an informed decision about your future.

What is a divorce in Georgia?

Simply put, a divorce is the legal termination of a marriage between two people.  The grounds for a divorce in Georgia are listed in O.C.G.A. § 19-5-3.

What is an annulment in Georgia?

It is the undoing or voiding of a marriage, as if the couple was never married.  Georgia’s law regarding when an annulment can be granted is listed in O.C.G.A. § 19-4-1.

Do we have to be living separately before getting a divorce, separation or annulment in Georgia?

No, you do not have to be living at separate addresses to get a divorce, separation or annulment.  However, there is a residency requirement (6 months) for divorce – and their is an expectation that the parties have not had sexual relations within thirty (30) days of the granting of the divorce or separation.  A divorce or separation can be dismissed if the parties reconcile – even if it is just for a short time.

What is legal separation / separate maintenance in Georgia?

Legally speaking, there is no legal separation in the state of Georgia, there is something called separate maintenance. Separate maintenance is the separation of spouses without the marriage being legally terminated. There are still decisions made about child support, custody and alimony just like a divorce. This means that the couple is still married but not responsible for each other.  The general provisions for separate maintenance are listed in O.C.G.A. § 19-6-10.

Why would I choose to still be married but be separated?

There could be some factors that don’t let you be fully divorced at the time. For example, should you not meet the residency requirement of Georgia to be divorced (which is 6 months) but you don’t want to be together with your spouse, you can for for separate maintenance (a separation) until you meet the requirements to for for divorce. The potential divorce filer may not be ready for divorce, but still needs financial support, or to maintain health insurance.  After a person has resided in Georgia for six (6) months, they can file for divorce.  Many cases start off as a separate maintenance action are later dismissed and refiled as a divorce case before the original case is completed.

Can I marry someone else if I am legally separated from my spouse in Georgia?

No, since you are not actually divorced, it is not possible for you to remarry while separated or under a “separate maintenance” order. In addition, it is against the law in Georgia to marry someone unless your existing marriage has been terminated by divorce or annulment, and Georgia will treat this as bigamy, which is a serious criminal matter, which includes arrest and imprisonment if convicted. If arrested for bigamy, you may need to prove your previous marriage was terminated by divorce or annulment to be released from jail. Previous marriages include marriages in other countries and states. See O.C.G.A § 16-6-20 for more information.

What happens to our children?

Just like in a divorce, there has to be determinations made about who gets custody of the children, visiting times, and child support.  Custody: See O.C.G.A. § 19-9-3. Child Support: See O.C.G.A. § 19-6-15.

What are the requirements to get a separate maintenance order in Georgia?

In Georgia, all that is required for a separate maintenance is that you have a valid marriage and live in a state of separation and the other spouse must be personally served (deliver the documents). If the other spouse cannot be personally served, the filing spouse will have to get a divorce instead.

Do I or my spouse have to move out?

In Georgia, it is possible to live in the same house but the spouses cannot share the same bed or have ongoing sexual relations. In general, their lives should be separate. A divorce or separate maintenance case can be dismissed if the court finds out that the parties have reconciled since the case was filed. While this is not common, it is sometimes used as a reason for one spouse to ask the court to dismiss the case if they do not want it to proceed. If a case is dismissed, it can be refiled later if the parties are separated again, but the whole case will need to start over.

Where do I file for divorce, separate maintenance or an annulment in Georgia?

Usually a case is filed in the county of the defendant’s (the spouse being served) residence.  But this is not always necessary; many divorce cases can be filed in Georgia by the plaintiff even if their spouse lives in another state or country.  However, the other party will need to be properly served with the divorce, separate maintenance or annulment case.  Proper service can include Service by Publication for parties that cannot be found.  Also, a case can almost always be filed in the county either party lives if the case is uncontested.  See O.C.G.A. § 9-11-4 for more information regarding service of process.

Do we still have to go to court in Georgia?

If it is a Georgia uncontested divorce or separate maintenance action  (meaning that the spouses can reach agreements), the only reason to see a judge would be to get approval for the agreements made. However, with the help of an experienced divorce and family law attorney, most court hearings for uncontested divorce and separate maintenance cases can be avoided.  In a contested case (the spouses cannot reach an agreement on some issues) the judge will have to make the decisions on issues that cannot be agreed upon by the couple.  This will almost always require the person bringing the case (the plaintiff) to appear in court.  Annulments in Georgia cannot be filed as an uncontested matter.

What if we want a divorce later?

You can get a divorce after a separate maintenance, however, the agreement signed during the separation will be used to for the divorce agreement, so be sure to carefully examine it before signing.

Who should I call for help?

It is best to start with an experienced divorce and family law attorney that practices in the jurisdiction and county you live, or your spouse lives.  If you have questions about a Georgia divorce, separate maintenance action, or annulment case, call us at 770-609-1247 to speak with one or our experienced attorneys.