Timing matters. A Georgia separation agreement is made when the spouses are separating, not while the marriage is running normally.
What the Statute Assumes
OCGA 19-6-8 describes when these agreements are made: “[i]n cases of voluntary separation or in cases where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse.” The separation is the occasion for the agreement.
How Close to the Separation
The rule is not rigid about which comes first. In Sells v. Sells, 206 Ga. 650 (1950), the Georgia Supreme Court applied the standard that “a contract providing for the wife’s maintenance, made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable.”
So an agreement signed just before the parties actually part is fine, provided the separation itself has already been decided on.
Sells enforced such an agreement. After the parties separated, they signed a contract settling alimony for an immediate payment of $1,400 plus $50 per month for the wife’s life. She later argued the contract was void because her husband had proposed it to promote a divorce. The Court disagreed, and it noted that a clause promising $100 toward her attorney’s fees if she later filed for divorce did not change the result.
One Thing Has Changed Since Sells
Sells was decided when an agreement intended to promote the dissolution of a marriage was void as against public policy. The Georgia Supreme Court abandoned that rule in Sanders v. Colwell, 248 Ga. 376 (1981). What survives is the timing point, not the old public policy objection.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!