To Divorce, or to Separate: That is the Question

Clark Lowery & LumpkinDivorceTo Divorce, or to Separate: That is the Question

Separation.  Divorce.  What is the difference?  What are benefits of one over the other?  If I separate now, will that affect me during a divorce later?

These are all questions that I commonly hear regarding these two procedures.  So today, I have decided to compile a list of the good, the bad, and the ugly regarding making that decision.

  • The Good: Amid deciding whether to terminate your marriage and possibly change your children’s lives forever, separation agreements, also known as Separate Maintenance Agreements, tend to be an attractive option for couples who are still on the fence of whether to salvage their marriage or part ways permanently. A Separation Agreement is a contract that sets forth how parties govern themselves in their separation. For many litigants, entering a separation agreement is the only way to get their spouse to assist financially in the household and for the children.  For others, it is a way to get the pesky details that may arise in divorce proceedings out of the way.  For example, determining what will be done with the marital home, how joint debts will be allocated, how the parties will divide their retirement accounts, and whether either party will receive spousal support or alimony moving forward.  Separation Agreements are a way to have a piece of mind while you sort out what you ultimately want to do and are an excellent tool to protect yourself if a divorce comes later.
  • The Bad: What happens if you and your spouse decide to reconcile after entering a separation agreement? Do you still get everything you thought you contracted for?  In all honesty, it depends.  Georgia law favors reconciliation, however, if you and your spouse subsequently re-cohabitate, the only portion of your separation agreement that is nullified are those provisions that relate to permanent alimony.  Property division provisions are a different story; this is the bad part.  So, while separation agreements are very useful for the short term, there may be serious long term effects on your rights in a subsequent divorce action if that agreement is incorporated into the final judgment and divorce decree.  Remember, separation agreements are contracts (and therefore binding).

The Ugly: Separation agreements can cause a litigation nightmare if not drafted properly, clearly, and accurately.  If there are provisions that are vague as to the terms, there is a chance that you may not be getting what you thought you contracted for.  You could be signing your life away when all you wanted was a temporary place holder.  So, be smart, be clear, and be sure about your decision to enter a separation agreement before you sign on the dotted line.

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