A separate maintenance action is an action where one spouse sues for permanent alimony without actually filing a divorce action.  There must be a valid marriage between the couple at the time the action is filed and the couple must be living separately in a bona fide state of separation.  The action must be for permanent alimony--there is no jurisdiction of suits for only temporary alimony.  There can be no pending action for divorce as the underlying policy of the Court is to consolidate all claims for alimony and divorce in one action. 

Distinctions Between Divorce and Separate Maintenance

Differences in the process can affect which action a claimant may wish to take if deciding between the two actions.  Unlike a divorce action, there is no requirement that a petitioner for separate mainitenance have been a resident of the state for six months before filing a petition.  Also, unlike divorce, there can be no "service by publication" meaning that a petitioner must actually personally serve the defendant in a separate maintenance action to move forward.  It is possible to establish jurisdiction through a piece of property inside the state up to the value of the property.  Additionally, minors can not bring separate maintenance suits without the appointment of a guardian by the Court. 

Equitable Relief

Generally speaking, one spouse may restrain or enjoin the other spouse from unlawful interference with property or personal rights.  It is also possible for the court to issue a "writ of ne exeat" which means that a spouse cannot remove himself/herself or his/her proeprty from the court's jurisdiction by requiring that a bond be posted.  It is also possible if a spouse has conveyed a piece of property in an attempt to hide that piece of property to bring that person in as a third party defendant in a separate maintenance action--even if the person to whom the property was transferred does not reside in the county in which the lawsuit is being brought.  It is important to note that O.C.G.A. Section 19-5-7 which prevents a spouse from tranferrring property after a divorce suit has been filed does not apply to actions strictly for separate maintenance.

Alimony and Expenses of Litigation

When there is no pending action for divorce and there is a bona fide separation, either spouse may ask the court for seperate maintenance and attorney's fees in cases of separation by mutual consent of both parties or where one individual was forced to leave the other because of the other spouse's conduct.  In an action for separate maintenance and child support, either spouse may seek custody of the children.  By bringing an action for support, a plaintiff submits the issue of custody to the court and thus making such a move for maintenance can place custody decisions with the court.

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