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When divorcing, make sure your separation is “bona fide”

by | Jul 21, 2023 | Divorce, Family Law

Divorce is stressful. Some divorces are more stressful than others, but at its core every divorce represents a fundamental change in the relationship of at least two people. While this change can benefit everyone involved, change itself can be hard to come to grips with. Minimizing additional injections of stress into a divorce works to everyone’s advantage. 

There may be inevitable stress that is introduced into a divorce proceeding, however there are a myriad of ways clients can work to avoid adding a heaping scoop of stress onto their case, including making sure that once you file for divorce your actions line up with your stated intentions, namely that you and your spouse be separated.

What is Legal Separation in Georgia?

In Georgia, marital separation is defined as “a suspension of marital relations between [spouses]without dissolution of the marital relationship. The suspended conjugal rights include the company, the cooperation, assistance, aid, and intimacy of the other spouse in every conjugal way.” 

It is not essential that one spouse should leave the marital homeplace; separation can occur when one spouse moves into another room with the intent and purpose of suspending conjugal rights. 

As you can see, separation contemplates that the parties do not want to engage with one another as spouses, which includes sleeping together.

Can Sleeping Together affect a potential divorce?

While you may think that filing for a divorce signals your unequivocal intent to get divorced to the Court, sleeping with your spouse after filing for divorce can throw a wrench into your divorce moving forward and can even result in the action getting dismissed.

If you have filed for divorce on the no-fault grounds that the marriage is irretrievably broken with no hope of reconciliation you are putting forth that either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation. Hartwell v. Hartwell, 233 Ga. 89 (1974). If you begin sleeping with your spouse after filing for divorce on this ground, a judge may find that the differences between the parties are not so irreconcilable. Subsequent reconciliation and cohabitation of the parties can result in termination of the action for divorce

If you have filed for a fault-based divorce on the grounds of cruel treatment, adultery, desertion, or habitual intoxication, sleeping with your spouse after filing can constitute condonation, or forgiveness, of their behavior which bars that particular divorce action from being granted. See O.C.G.A. § 19-5-4

Cohabitation, condonation, and reconciliation are defenses to a pending divorce action and while sexual intercourse is not an essential element of condonation, it is conclusive evidence thereof. Phinizy v. Phinizy, 154 Ga. 199 (1922); Duncan v. Duncan, 184 Ga. 602 (1937); Dixon v. Dixon, 211 Ga. 869 (1955). 

The defense would have to be raised by the Opposing Party to bring this behavior to the Court’s attention to support their claim that the divorce should be dismissed. Once a divorce is entered then the existence of a resumption of marital relations after filing for divorce that was not raised before the final determination is not grounds for setting aside a divorce decree (Southworth v. Southworth, 265 Ga. 671 (1995)), however it is best not to give the Opposing Party any footholds at all that could result in dismissal of the action.

Do you need to support your spouse during separation?

“Bona Fide” Separation is different from Separate Maintenance. A bona fide separation simply requires spouses to not sleep with each other. Georgia uses this term ‘bona fide’ to describe this situation of separation. In other states, the term “separated” describes a similar situation. This separation often serves as a prerequisite for initiating divorce proceedings and can have implications for child custody until the divorce is officially concluded. Georgia does not have these statutes. However, there is a similar but separate action spouses can take. This is known as Separate Maintenance.

What is Separate Maintenance in Georgia

Separate maintenance offers an alternative to divorce, allowing couples to live apart while remaining legally married. During separate maintenance, they continue to share marital assets and enjoy the same insurance they had during their marriage.

As the name suggests, Separate Maintenance entails maintaining a marital relationship while living apart physically and emotionally. In the state of Georgia, either spouse, or both in mutual consent, can initiate Separate Maintenance proceedings. This arrangement permits spouses to sustain their marriage while residing separately. In essence, they remain legally married but have the freedom to live apart while still receiving marital advantages such as financial support, child support, and healthcare coverage, among other benefits. Courts can grant child support, alimony, child custody, and address other legal matters that could typically be decided during a divorce case, either on a temporary or permanent basis.

Are you in a bona fide state of separation?

Beyond the potential legal implications of engaging in marital relations while you have a divorce pending, there are practical and emotional implications as well. During a divorce proceeding acting as if you and your soon to be ex-spouse are still married can cause confusion and increase friction between the parties. While the experienced team at the Manely Firm can help advise and counsel you on the appropriate course of action to take should you find yourself in a situation where marital relations have happened after the filing of a complaint for divorce, it is best to steer clear of this added stressor which can unnecessarily increase both the cost associated with divorce and the time it takes to get a divorce. Making sure your actions are in line with your intentions from the very start of the divorce proceedings ensures that you and your legal team are in the best position possible to put you on the path towards your new future.

Felix Kloc