Summary of Georgia Separation, Divorce
and Alimony Law

Legal Separation and Divorce in Georgia

In Georgia, a “legal separation” is not necessary if spouses are planning on divorcing. In fact, Georgia law does not provide a cause of action for a separation as in some other states. That means that a person cannot sue their spouse for separation in Georgia.

A person can, however, sue their spouse for maintenance (also known as alimony or spousal support) in Georgia (see the Code of Georgia Annotated; 19-6-10).

Spouses can also enter into a written agreement (sometimes referred to as a “Marital Settlement Agreement” or a “Separation Agreement”) regarding their rights and responsibilities pertaining to issues such as spousal support, property division, child custody, and child support.

The main reason for suing for maintenance or entering into a separation agreement (rather than merely informally separate) is generally to make more certain the rights and responsibilities of the parties during the period of separation.

Neither an informal separation nor a legal separation means that the spouses must divorce. They are free to reconcile at any time and resume living together. For some couples, a separation serves as a cooling off period--a method of relieving immediate pressure while they sort out what they want to do with their lives. For other couples (for instance, couples with a religious objection to divorce), a separation may be a more permanent solution to a marriage that is not working out.

Initial considerations for Divorce in Georgia

To obtain a divorce, at least one of the spouses must have lived in Georgia for six months or Georgia must be the last domicile of the marriage. The divorce action must be filed in Superior Court in the county in which one of the spouses lives.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Most states, including Georgia, permit no fault divorces. A “no fault” divorce is simply a divorce for which it is not necessary to prove that there was any fault or wrongdoing by either spouse.

To obtain a divorce on no fault grounds, one spouse must establish that he or she refuses to live with the other spouse and that there is no hope of reconciliation. It is not necessary that both spouses agree that the marriage is irretrievably broken.

Georgia also has twelve possible fault grounds under which spouses can obtain a divorce. They are:

• • Intermarriage by persons within the prohibited degrees of consanguinity or affinity
• • Mental incapacity
• • Impotency
• • Marriage by force, menace, duress, or fraud
• • Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband
• • Adultery
• • Willful and continued desertion by either of the parties for the term of one year
• • Conviction of either party for an offense involving moral turpitude, under which the spouse is sentenced to imprisonment in a penal institution for a term of at least two years
• • Habitual intoxication
• • Cruel and inhuman treatment
• • Incurable mental illness
• • Habitual drug addiction

Division of Property

Georgia is referred to as an “equitable division” state (as opposed to being a “community property state” as are some other states). This means that property is divided “equitably.” This does not necessarily mean “equal” or 50/50. Its meaning is closer to “fair” and “just.”

All property owned by either spouse may be categorized under Georgia law as either marital property or non-marital property. “Marital property” generally means property acquired by either spouse during the marriage, except property acquired by inheritance or gift.

If property is considered to be “marital property” under Georgia law, it is then subject to equitable division between the spouses upon a divorce. There is no predefined formula to divide marital property. Marital property is divided “equitably.”

Alimony in Georgia

Alimony (sometimes referred to as spousal support or maintenance) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce. According to Georgia law, alimony is defined as “an allowance out of one party’s estate made for the support of the other party when living separately”. O.C.G.A. § 19-6-1(a).

In Georgia, a person who is living apart from his or her spouse can maintenance, regardless of whether or not they plan to divorce (see the Code of Georgia Annotated; 19-6-10).

In Georgia, alimony can be awarded to a party in a divorce in two different ways – lump sum alimony and periodic alimony. Lump sum alimony is when a party receives one large sum of money from the parties’ estate as alimony. On the other hand, periodic alimony is where a party receives periodic payments of alimony (usually on a monthly basis) over the course of a certain period of time.

Factors Affecting the Amount and Duration of Alimony in Georgia

In Georgia, alimony is not mandatory in a divorce or legal separation. The court may grant alimony to either spouse from the income or estate of the other, either as periodic payments or lump sum awards. There are no guidelines for determining alimony, but there are some factors that the court may consider in determining first if alimony is appropriate, and then in what amount. These include:

• • The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker, in childcare, education, and career-building of the other spouse
• • The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
• • The duration of the marriage
• • The financial resources of each spouse
• • The age and physical and emotional condition of both spouses;
• • The value of each spouse's separate property
• • The earning capacity of each spouse
• • Any fixed liabilities of either spouse
• • The standard of living established during the marriage
• • The time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment

Modifying Maintenance Orders in Georgia

A court generally may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if there has been a substantial change in circumstances. However, the parties may agree to make maintenance non-modifiable. Lump sum alimony is not subject to modification. Examples of changes in circumstances that might warrant a maintenance modification might include increased or decreased ability to pay or a substantial change in the needs of either party.

When do Alimony Payments End?

Alimony that has been awarded for an indefinite period of time generally will end at the death or remarriage of the recipient.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. Therefore, it is best to consult with an attorney or qualified tax professional.