In North Carolina, there are two kinds of divorce: an absolute divorce, which is the most common and what most people think of as being a “divorce,” and divorce from bed and board. While an absolute divorce ends a marriage, a divorce from bed and board serves as a judicial (or legal) recognition of separation. Its primary function in North Carolina is to suspend the rights and duties that are attached to the marriage, but it is not a fast track to divorce.
In North Carolina, divorce from bed and board is treated as a fault-based separation and, therefore, the law only allows for a judgment of divorce from bed and board in specific instances. Most often, a complaint for divorce from bed and board is filed when one spouse wants the other to move out because of a marital affair, abusive behavior, or misuse of drugs and/or alcohol.
In practice, divorces from bed and board are rare and generally aren’t needed where the spouse at fault agrees to some sort of separation agreement or agrees to move out. It is also important to note that while this is the only legal separation that is filed in court, an absolute divorce only requires an actual showing that the parties have lived separate for a year or more. In other words, a divorce from bed and board is not required for an absolute divorce to be entered.
So how exactly does a divorce from bed and board judgement affect you and your spouse’s rights? First, once the judgment has been entered, the court can order that the at-fault spouse move out of the marital home and they lose their right to live with the complaining spouse. In fact, this is the key element of divorce from bed and board that complaining spouses depend on, especially if there is abusive or unwanted behavior going on in the home.
Secondly, divorce from bed and board does not dissolve either spouses’ right to marital property (or property obtained during the marriage). Because it is not an absolute divorce, there is no division of property between the parties. At least not yet. The divorce from bed and board will, however, serve as strong evidence of the date of separation, which, if the parties do end up getting an absolute divorce, will be used to distinguish marital from separate property during property division. Divorce from bed and board will, however, prevent the at-fault spouse from automatically inheriting from the complaining spouse’s estate.
Divorce from bed and board also serves as proof of separation for the purposes of requesting child and spousal support. Indeed, the court can even make such determinations as part of the divorce from bed and board decree itself. The reason for the complaint of divorce from bed and board, such as abuse or extramarital affair, may be considered by the court in deciding support issues. More specifically, a court finding that there was martial misconduct committed by the at-fault spouse can also help a dependent spouse in a claim for alimony or post separation support.
Lastly, it must be reiterated that a divorce from bed and board is NOT a divorce. Therefore, neither spouse can re-marry and any sexual relations outside of the marriage can be used as evidence in future divorce proceedings.
To be successful in a claim for divorce and bed and board, you must show one of the six grounds for the claim exists. The six grounds are abandonment of the family, maliciously turning the complaining spouse out of doors, treating the complaining spouse in such a cruel or abusive way that it endangers his or her life, indignities that render the complaining spouse’s condition intolerable or life overly burdensome, abusive drug or alcohol use by the at-fault spouse that makes the complaining spouse’s condition intolerable or life overly burdensome, and adultery.
As with almost any legal claim there are defenses to the six grounds listed above. The four defenses are collusion, connivance, condonation, and recrimination.
Collusion is not used much in North Carolina, as it is when spouses conspire to mislead the court about marital fault. Because there is no requirement for fault in getting a divorce in North Carolina it doesn’t seem to make sense that spouses would conspire to get a divorce.
The remaining three are more commonly used. Connivance is when the complaining spouse brings about the marital misconduct. A common example is setting traps or showing evidence that the complaining spouse encouraged the misconduct.
Condonation is when the complaining spouse forgives the marital misconduct and restores the at-fault spouse to their marital status. This is the more commonly used defense, especially when there is a greater period of time between the complaining spouse gaining knowledge of the affair/misconduct and the pleading.
Recrimination is when the complaining party is also guilty of martial misconduct. The theory being you can’t complain about conduct you are also committing. If this is the case, the complaining spouse may use the same defenses to his or her misconduct as well.
If you are considering filing a claim for divorce from bed and board, or have received a complaint for the same, contact our office and we will help guide you through the process and determine whether a divorce from bed and board is right for you.
