Divorce From Bed and Board
Divorce From Bed and Board
Divorce from bed and board is a fault-based action, usually brought by an injured spouse to get the court to order the other spouse out of the residence. If brought in conjunction with other claims (custody, child support, distribution of property), a judicially ordered separation pursuant to the prayer for divorce from bed and board establishes the separation required for those other actions. The complaint for divorce from bed and board must be verified and it must contain the required allegations of residency.
Only the injured party may apply for a divorce from bed and board. The complainant seeking a divorce from bed and board must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery. Further, the complainant must allege that he or she did not provoke the other spouse’s misconduct. The right to jury trial in an action for divorce from bed and board is governed by the statutory provision permitting a jury to make the factual findings on issues of fault.
The method for proving any of the six grounds for divorce from bed and board is the same as the proof required for any of those same grounds under the alimony case law, reviewed in the spousal support section of this website. The complaining party must prove the ground by the greater weight of the evidence.
The party defending against an action for divorce from bed and board has the common law affirmative defenses still available in the alimony context, i.e., condonation, connivance, collusion and recrimination, also discussed in more detail in the alimony section of this website. The simple fact of the parties’ reconciliation while the action is pending is not a defense, however.
Resumption of marital relations after a divorce from bed and board is granted nullifies the effect of the divorce. The resumption of cohabitation is measured under the standard enunciated in Section 52-10.2, quoted in the alimony section of this website.
As an action seeking a judicially authorized separation, an action for divorce from bed and board is seen by North Carolina courts as an appropriate vehicle for awarding exclusive possession of the marital home.
A divorce from bed and board “suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond.” The legislature has, however, directed that a spouse divorced from bed and board loses the rights enumerated in Section 31A-1(b) of the North Carolina General Statutes. Rights in property of the innocent spouse are likewise barred to the offending spouse, for so long as the parties remain separated, pursuant to Section 31A-1(d)(1).