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Divorce, Separation and Annulment – FAQs

Should the time come that a married couple no longer wants to be together, they may have some questions about their options. 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?
Simply put, a divorce is the legal termination of a marriage between two people.

What is an annulment?
It is the undoing of a marriage, as if the couple was never married.

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

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.

Can I marry someone else if I am separated from my spouse?
No, since you are not actually divorce, it is not possible for you to remarry while in “separate maintenance”.

What happens to the children?
Just like in a divorce, there has to be determinations made about who gets custody of the children, visiting times, and child support.

What are the requirements to get a separate maintenance?
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 and their lives must be separate.

Where do I file for divorce, separate maintenance or an annulment?
Usually a case is filed in the county of the defendant’s (the spouse being served) residence.  However, a case can usually be filed in the county either party lives if the case is uncontested.

Do we still have to go to court?
If it is an uncontested separation (meaning that the spouses can reach agreements), the only reason t see a judge would be to get approval for the agreements made. 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.

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.