Legally separated not divorced. Are we still husband and wife?

Asked by , Edited by Moderator [ Admin ]

My spouse and I dated for 3 yrs, lived together for 9 yrs and were then married for 13 yrs. We have one son. We were separated for 2 yrs before we made a legal separation agreement due to financial considerations. We have now been separated for 6 yrs though we still have feelings for each other but apparently can’t reconcile due to the hurt I caused. My spouse now lives with another though a “prenup” agreement was signed as a safeguard against the financial issues that we went through. Still neither of us has filed for divorce and I still live alone (if this is pertinent to my questions).
My question is if neither of us have divorced are we still considered spouses and therefore next of kin? If one of us becomes ill or injured would we be legally responsible for decisions regarding treatment and care if the injured were unable to make the decisions themselves and permission is required? Or if, after treatment, its a situation where the injured or ill party is considered either temporarily or permanently incapacitated or incompetent are we legally able to speak and decide for the other as husband and wife? I ask because our son is concerned as my spouse began to drink again which is a risk due to a preexisting liver condition and the new live in is believed by many to be a “gold digger” and not only joins in but encourages the drinking. Many people worry about the possibility, should medical issues arise that require life or death decisions from next of kin, will it be me or the new live in who would make those decisions? Or if either of us passes away are we still considered legal spouses,and therefore, in the absence of wills, next of kin in regards to funeral arrangements? Would we still be recognized as husband and wife in terms of inheritance or benefits? In the unhappy and unwanted possibility that my spouse dies without a will our son worries that the family business may not be inherited by myself or him. I tell him that as we are not divorced everything would go to me as the legal spouse. I tell him that should any medical decisions be required I would be the one making them. And I tell him that should my spouse become ill and require care we will be the ones giving that care as we are still legally married. I hope these assurances I have given him are true. The issue of wills can’t be discussed as all heck breaks out so I am asking here so I can assure myself that I haven’t lied to our son. Thanks for taking the time to read this and answer my questions.

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advice [ Admin ]

You really need to talk to a lawyer.

I would think however that if you have been living separate and apart, and have a separation agreement that you would only be entitled to whatever is provided for in the separation agreement, and otherwise and without a will, your separated spouses assets would be divided in accordance with the way she is living her life now.

Her live in could be determined to be a common-law spouse and therefore entitled to support and assets, your son would likely get an inheritance, and unless otherwise provided for I would assume you would not be included.

There are many variables including where you live, whether you are entitled to spousal support, what you are/were entitled to as far as asset equalization, etc. I would say it is MUCH better to deal with these things now rather than simply wait.

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