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After being separated for 17 years, does this mean that a couple can be considered legally divorce?

Apopka, FL |
Filed under: Divorce

My stepmother and dad have been separated for 17 years, my dad is terminally ill with stage 4 cancer today. She shows up at the hospital and asked the Dr. to let him die in peace instead of giving him treatment. But I had a paper signed by my dad that saids I am the only one that can make medical decisions for him. But because she is legally married to him she has other rights which is the reason why I think she wants him to pass. I want to know since they have been separated for so long will they be considered divorced by law. Can you please help me. Please advise.

Attorney Answers 4

  1. Separation does not become a divorce.

    Legal disclaimer: In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does it form an attorney-client relationship.

  2. Absolutely not, your dad or stepmother need to file a formal petition for dissolution in the courts.

    This answer is for informational and educational use only. This answer does not create attorney-client relationship. For more details, I recommend a private consultation with a family law attorney. Stange Law Firm can offer you a free one hour consultation if you call (314) 963-4700.

  3. Though many (but not all) jurisdictions recognize so-called "common law marriage", whereby parties who co-habit and meet other certain criteria can be "deemed" married for legal purposes, there is no corresponding "common law divorce". Separation, no matter how lengthy, would not (in most cases) constitute an automatic divorce. Your father would have to petition a court for a divorce. You might have options regardless of their marital status, particularly since you have some form of documentation that expresses his wishes. It may or may not constitute a durable power of attorney (I would say more likely not if it is simply a document signed by him) but if he has any medical directives expressed to his physicians, those would trump the decisions made by his spouse. Considering the gravity of the circumstances, and the importance of the outcome, I would consult a family law or trust and estate attorney in your jurisdiction for more infomation on spousal rights to make healthcare decisions as well as the sufficiency of the document you possess to act as his medical representative instead of your mother.

  4. Unfortunately, in Florida, separation for certain amount of time does not provide an automatic divorce. Either one (the husband or the wife) must file a petition for dissolution of marriage and process it to the end to obtain a final judgment of dissolution of marriage from the Court (the divorce). It is true what you say. His wife right now has rights as his heir and/or possible beneficiary. Under Florida law, even if your dad has a Last Will and Testament, his wife can ask for what is called an "elective share" which is basically a one third of part of your dad's "estate". Also, she may be named in your dad's will and/or in your dad's life insurance policies, not to mention that if they currently have any properties entitled to their name (or properties that were acquired during their marriage) the wife has also a right to those.

    Alejandro R. Lopez, Esq.
    Law Office of Alejandro R. Lopez, P.A.
    4465 Edgewater Dr.,
    Suite A
    Orlando, Fla. 32804
    Ph.: (407) 649-1404

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