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A Word from Scott Shaw: FAQ – Should I File for Divorce or Legally Separate?

One of the most frequently asked questions we hear is “should I file for divorce or legal separation?”  In the State of Georgia, both actions can trigger similar outcomes in terms of awarding child custody, child support, alimony, distribution of assets, marital home, cars, debts and other property, and allowing the spouses to move forward as separate persons.  So why would someone choose a legal separation over a divorce?  

6 Month Residency Requirement 

Under Georgia and Federal law, there are some distinct differences between legally separating and divorcing your spouse.  The biggest material difference between them is jurisdiction.  In the State of Georgia, one spouse has to be a bona fide resident of Georgia for at least six months for the Georgia Superior Court to have subject matter jurisdiction to issue a divorce along with all the benefits and relief that can be awarded.

What if you can’t wait six months? If you need relief now, you can file for legal separation.  There is no waiting period to file for separation and all you need is personal jurisdiction in the State of Georgia over your spouse. That means even if they’ve been in the State of Georgia for one day and we serve them in Georgia on that day, you have jurisdiction to file for separation.   

A filing of legal separation allows you to obtain all the benefits and relief you could get had you filed for a divorce, with only a few exceptions.  As an example, spouses can even divide and transfer most tax deferred pension and 401K retirement plans tax-free using a Qualified Domestic Relations Order (QDRO) whether they are divorced or legally separated.  A provision in the QDRO law allows legally separated spouses to divide pension and retirement assets tax-free, as if they were divorced.  The division must be between a spouse or an ex-spouse, and under a domestic support order.  A domestic support order can be awarded to a spouse in either a legal separation or divorce proceeding.  Thus, dividing tax deferred assets can be done equally as well in a legal separation as it can in a divorce proceeding.  

Other Benefits of Legal Separation over Divorce 

The same legal relief and benefits can largely be obtained through Georgia courts in either a legal separation or divorce in Georgia.  There is one big material difference. After a legal separation, you are free to live your own life, but you’re still legally married.  

Remaining legally married but separate instead of divorced could be the right choice for some people. Some reasons for this choice include: 

  • Religious reasons
  • Health insurance reasons
  • Complicated legal relationships like trusts and estates
  • Life Insurance
  • Public Perception
  • Government benefits
  • Tax reasons
  • Immigration reasons

And, in some cases, partners can hold out hope for future reconciliation with their spouse and are not ready to end it with a divorce. 

There are also some procedural reasons under Georgia Law. Beyond the six-month residency requirement.  One such reason is that it removes the need to show marital fault, even your own.

What’s the Downside of Filing for Legal Separation instead of Divorce? 

In this case, the downside is the same as some of the benefits. You’re still legally married. This means if you begin a new relationship, you cannot remarry.  If you do start a new relationship and have children with your new partner, you cannot obtain the benefits of marriage.  Other considerations include: 

  • Your new partner will have to legitimate their children
  • Can’t file taxes as married with your new partner
  • Your spouse can’t use the QDRO to provide retirement funds to you tax-free
  • You will not have a right to year’s support
  • You will not have the right of a spouse for government benefits
  • You may not be on your partner’s medical insurance

There are a lot of legal and practical ramifications to consider. The status of remaining married can lead to significant legal consequences. 

Should I File for Legal Separation or Divorce?

In most cases we encourage our clients to file for divorce in the State of Georgia.  Filing for Legal Separation instead of divorce is only for specific circumstances or reasons. The most common is the need for immediate relief that can’t wait for six months. We listed other reasons above, but the list is far from exhaustive and those are why legal separation exists. A good lawyer can work out almost all of the same issues in a divorce as we can a legal separation. At the end of the day, if you legally separate, you are still legally married. That legal status has many ramifications that simply can’t be worked out.  That’s why absent a specific need to maintain the status of legally married, we encourage our clients to seek a divorce in the state of Georgia. 

If you have any questions, we’d be happy to speak with you at Shaw Law Firm.  We are Atlanta, Georgia Divorce and Child Custody Lawyers, have been doing this since 1995.