If your client is considering pursuing a separate maintenance action – sometimes referred to as a “legal separation” – especially a contested separate maintenance action, he or she should be aware of the following case law and the limitations it places on courts adjudicating such actions.
By Margaret Simpson, Family Lawyer
A separate maintenance action, sometimes referred to as a “legal separation,” can be an alternative to divorce but may not provide all of the relief the parties are seeking. Understandably, given that separate maintenance actions are somewhat uncommon, the case law on this subject is a bit sparse and leaves a few questions without a clear answer. If your client is considering pursuing a separate maintenance action, especially one that is contested, he or she should be aware of the following case law and the limitations it places on courts adjudicating separate maintenance actions.
What Relief Is a Georgia Court Authorized to Grant in a Separate Maintenance Action?
A. Alimony and Child Support
Although Georgia’s separate maintenance statute[1] does not use the term “child support,” it is clear that a court may award alimony and/or child support in a separate maintenance action. “[A]limony includes support for a spouse or for a child or children.” Jones v. Jones, 280 Ga. 712 (2006). The child support statute also contemplates child support being awarded in separate maintenance actions. The statute provides for the duration of a child support obligation imposed “in any temporary, final, or modified order for child support with respect to any proceeding for divorce, separate maintenance, legitimacy, or paternity.” O.C.G.A. § 19-6-15(e) [emphasis added].
For a court to grant separate maintenance, the parties must be living separately or in a bona fide state of separation, and there must be no action for divorce pending.[2] O.C.G.A. § 19-6-10. If an action for divorce is filed, a pending separate maintenance action would be held in abeyance, and any order for permanent alimony issued in the divorce matter would supersede a previous award for separate maintenance. Id; Browne v. Browne, 242 Ga. 107, 249 S.E.2d 594 (1978)(holding when, in a divorce case, the trial court adjudicates the issue of permanent alimony, a prior maintenance award is entirely superseded); See also Southworth v. Southworth, 265 Ga. 671, 461 S.E.2d 215 (1995)(holding it was unnecessary to set aside previous separate maintenance award since the award was superseded by the divorce decree). “If there is no prayer for alimony in the divorce case, the award in the separate maintenance case will stand.” Goodman v. Goodman, 253 Ga. 281 (1984).
B. Child Custody
The separate maintenance statute does not make specific reference to child custody orders. O.C.G.A. § 19-6-10; Thompson v. Thompson, 241 Ga. App. 616, 620 (1999). However, the superior courts are authorized to award child custody in separate maintenance actions. Brown v. Cole, 196 Ga. 843 (1943)(upholding award of child custody in alimony suit); Hayes v. Hayes, 248 Ga. 526 (1981)(upholding separate maintenance judgment providing for custody, visitation, child support and alimony); Grayson v. Grayson, 217 Ga. 133 (1961)(affirming order adopting parties’ agreement on custody in a separate maintenance action); Breeden v. Breeden, 202 Ga. 740 (1947)(holding “[a] wife living in a bona fide state of separation from her husband may maintain against the husband an action in the superior court for alimony for the support of their minor child, which the father is by law obliged to support, and in the same action may seek the custody of the child”). Even when a prayer for custody of minor children is not included in a petition for separate maintenance, the superior court has authority to award custody. Mills v. Mills, 150 Ga. 782 (1920)(finding no error where the court awarded custody to the mother despite no prayer for custody being included in her petition for separate maintenance).
Georgia’s child custody statute is applicable to “all cases in which the custody of any child is at issue between the parents” and is not limited to divorce actions. O.C.G.A. § 19-9-3(a)(1). Likewise, O.C.G.A. § 19-9-3(b) permits modification of custody “[i]n any case in which a judgment awarding the custody of a child has been entered.” O.C.G.A. § 19-6-12 also contemplates custody being awarded in a separate maintenance decree and provides in pertinent part, “the rights of children under any deed of separation or voluntary provision or decree for alimony shall not be affected by such subsequent voluntary cohabitation of the spouses.” When permanent child custody has been awarded to a party in a separate maintenance proceeding and a divorce action is filed subsequently, the issue of modification of the custody award is not proper before the divorce court unless the divorce is filed in the county of residence of the person who has been awarded custody. Thompson v. Thompson, 241 Ga. App. 616 (1999).
C. Property Division and Lump Sum Alimony
Georgia law does not authorize division of marital property in a separate maintenance action. The prevailing case law indicates that a claim for division of marital property can only be filed or maintained in and ancillary to divorce proceedings. Segars v. Brooks, 248 Ga. 427 (1981)(holding “[i]n a few words, no divorce means no equitable division of property”). However, the cases indicating that a divorce is the only avenue for equitable division of property are not separate maintenance cases; instead, they involve estate disputes.
In Segars, the administratrix of deceased Wife’s estate petitioned for an equitable division of Wife’s and Husband’s marital property after Wife was murdered (allegedly by Husband) during the course of their divorce proceedings. The Court held that the unadjudicated claim for equitable division of marital property raised in the divorce action abated upon Wife’s death and thus could not be asserted by her estate. 248 Ga. at 428. Citing Stokes v. Stokes, 246 Ga. 765, 767 (1980), the Court held, “[a] Stokes claim for equitable division of property cannot be filed or maintained separate from divorce proceedings. To the contrary, a Stokes claim only can be filed or maintained in and ancillary to divorce proceedings.” Citing the Segars decision in a concurring opinion in Rooks v. Rooks, Justice Weltner notes that while alimony in the form of separate maintenance may be awarded absent a pending action for divorce, equitable division may not be so awarded – “even when the spouse seeking such allocation is murdered by her husband during the pendency of an action for divorce and ‘equitable division.’” 252 Ga. 11, 16 (1984)(Weltner, C. concurring). See also Hunter v. Hunter, 256 Ga. App. 898 (2002)(overturning award of marital residence to decedent’s surviving spouse as year’s support finding the widow’s claim, in essence for equitable division of the property, could not be maintained apart from divorce proceedings); Owens v. Owens, 248 Ga. 720, 721 (1982)(holding when decedent wife died before her claim for equitable division of property was adjudicated in her divorce action, her equitable property division claim died also, finding “no property rights are created in the assets of the marriage while the parties are still married”).
Although the three separate Goodman[3] cases involve division of property in a separate maintenance action, the question of whether the judge in the separate maintenance action had authority to divide the parties’ property is not presented. Rather, the Goodman cases arise from the Goodmans’ divorce case and address the authority of the divorce judge to divide property given that a separate maintenance decree dividing property was previously issued, rightly or wrongly. In Goodman II, the Court comes close to confronting the question of whether a trial court may equitably divide property in a separate maintenance action but narrowly avoids it. There the Court held that Segars and Owens “cited by the wife in support of her contention that there can be no property division absent a suit for divorce, are inapplicable here because in the case before us there was in fact a division of property in the separate maintenance judgment upon which the wife relied in Goodman I and of which she cannot now complain.” 254 Ga. at 64. The Court stops short of holding that Segars and Owens are not applicable to separate maintenance actions generally and gives no opinion on whether the Goodmans’ separate maintenance judgment dividing property would have withstood scrutiny had anyone challenged it when it was issued or had Ms. Goodman not relied on it in Goodman I.
Gideon v. Farlow mirrors the Goodman cases in that a separate maintenance judgment that included a division of property was issued, and the parties later divorced. 258 Ga. 633 (1988). Gideon holds that spouses voluntarily cohabitating with each other after a separate maintenance judgment has no effect on property division awarded in the separate maintenance judgment. Id. But as in the Goodman cases, the issue of whether it was proper in the first place to divide marital property in a separate maintenance judgment was not presented. Id. A similar situation arose in Browne v. Browne, where the parties entered into an agreement regarding alimony and division of property which was adopted and incorporated into a separate maintenance judgment. 242 Ga. 107 (1978). A subsequent divorce judgment was challenged on the grounds the court erred in finding the wife had waived her right to alimony, but the issue of whether division of property was authorized in the separate maintenance action was not presented. Id. Justice Hill’s concurring opinion in Stokes v. Stokes lends some credence to the idea that equitable division of property should be permitted in separate maintenance actions. 246 Ga. 765, 772 (1980). The opinion provides suggested jury charges regarding equitable division to be applied in “a suit for permanent alimony incident to divorce or legal separation,” but of course this is not binding precedent. Id. [emphasis added].
Georgia’s appellate courts have not directly addressed a claim for equitable division of marital property or lump sum alimony between two living spouses outside the context of a divorce. No exception has been created to the holdings in Segars, Hunter and Owens that a divorce action is the only avenue to pursue a claim for equitable division of marital property. These cases do not appear to foreclose the possibility of a claim for lump sum alimony or an award of property in the form of lump sum alimony in a separate maintenance action. See Daniel v. Daniel, 277 Ga. 871 (2004)(holding that lump sum alimony is merely in the nature of property settlement, but is not necessarily equivalent to an equitable division of marital property). However, the factors a trial court must consider and the bases upon which an award of lump sum alimony can be made differ from factors and bases for an award of equitable division.
Although Segars, Hunter and Owens indicate that a trial court is not authorized to equitably divide marital property outside of a divorce action, Gideon, Browne and the Goodman cases provide rules which govern situations where a trial court has done exactly that. So even though it is not clear whether a separate maintenance judgment awarding equitable division of property is actually allowed, there is some clarity regarding how the court in a subsequent divorce action should handle a case where marital property has already been divided in a previous separate maintenance action.
If your client is interested in pursuing a separate maintenance action, it is important that he or she is aware of the risk that the court may decline to award any division of marital property – or that any division the court may award could be challenged as improper. If your client’s spouse is seeking separate maintenance and asking for equitable division, you might consider arguing that while child support, custody, and alimony are on the table, equitable division is not. It will be interesting to see how the case law develops if the appellate courts are ever directly presented with the question of whether a trial court actually has the authority to divide marital property in a separate maintenance action.
[1] O.C.G.A. § 19-6-10, entitled “Voluntary separation, abandonment, or driving off of spouse – Petition for alimony or child support when no divorce pending – Order and enforcement; equitable remedies; effect of filing for divorce” provides:
When spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, either party, on the party’s own behalf or on the behalf of the minor children in the party’s custody, if any, may institute a proceeding by petition, setting forth fully the party’s case. Upon three days’ notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.
[2] However, where a party has filed a petition for divorce and alimony, the prayer for divorce may be stricken and the action could then proceed as to alimony only. Estes v. Estes, 192 Ga. 94 (1941).
[3] Goodman v. Goodman, 253 Ga. 281, (1984)(hereinafter “Goodman I”); Goodman v. Goodman, 254 Ga. 703, 704 (1985)(hereinafter “Goodman II”); Goodman v. Goodman, 257 Ga. 63 (1987)(hereinafter “Goodman III”)
Margaret Simpson is an attorney at Atlanta divorce and family law firm Boyd Collar Nolen Tuggle & Roddenbery. She focuses her practice exclusively on family law matters including divorce, alimony, asset division, child custody, child support, contempt and modification actions, as well as legitimation and grandparent visitation cases. www.bcntrlaw.com
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