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Legal Separation or Divorce?

Is there ever a time when a legal separation would be better than divorce?  Although both can cover much of the same ground in terms of children, property and finances, we encourage our clients to file for divorce except in rare cases. 

In a divorce there is the complete legal severing of the marriage, leaving both parties free to remarry. There is a complete division of properties and responsibilities. They both move on with new lives. An uncontested (no-fault) divorce may only take 60 to 150 days to process through the court. Fulton County, although handling a much larger case load than other Georgia counties, tends to be the quickest to process these. Forsyth County can take somewhat longer. 

There is little downside to filing for divorce. One of the parties must be a resident of Georgia for at least six months. The other factor is the time involved. Contested divorces can take from six months to several years to finalize, depending on the issues being addressed, the willingness of the parties, and the availability of court dates.  

A couple who can agree on division of assets and care of the children may be able to settle in six to 18 months. Fulton County’s trial calendar tends to be more backed up than other counties, although it is easier to get a temporary hearing there. The time and cost involved depends on the complexity of the case, and which court handles it.

There are special advantages to legal separation:

  • It is an option for immediacy. No need to wait six months to file.
  • It is the option for people whose religion or culture does not condone divorce.
  • There may be immigration issues involved.
  • It may be preferable where one spouse must remain on the others’ health insurance, 
  • or remain to receive spousal benefits, especially if they have been married for decades.
  • The spouse remains next-of-kin, and can make health or estate decisions for the other.
  • The couple may choose to remain a family for the sake of the children.
  • It removes the need to claim marital fault or admit one’s own fault.

The downside of filing for legal separation instead of divorce is that continuation of certain benefits such as rights to a spouse’s financial accounts, pensions, insurance or government benefits may be denied by the companies or agencies involved. It is a case by case situation. Also the couple can no longer receive the Married deduction on annual tax returns. But the major difference is that with a legal separation, the marriage remains legal. Neither will be able to remarry. If either spouse has children with a new partner, the partner will have to legitimate their children. 

The reasons listed above are far from exhausted. A good lawyer can work out almost all of the same issues through a divorce as we can with a legal separation. That’s why, absent the specific need to remain legally married, we recommend divorce in the State of Georgia. A clean break, a fresh start.

Scott Shaw is founder and principal of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today or call us at 770-594-8309.