In North Carolina, there are two types of divorces: absolute divorce and divorce from bed and board. An absolute divorce dissolves the marital contract between spouses so that the parties are no longer married. To qualify for an absolute divorce, parties must live separate and apart for at least one year with the intent not to live as man and wife. No fault is required to acquire an absolute divorce.
WHAT IS A DIVORCE FROM BED AND BOARD?
Unlike absolute divorce, a divorce from bed and board is a fault-based legal action. Despite its name, a divorce from bed and board does not dissolve the marriage: rather, it is a court-ordered decree of legal separation. In this separation, the matrimonial bonds still exist, so neither spouse has the right to remarry.
Typically, a divorce from bed and board is only necessary where one spouse will not enter a separation agreement. It is not required to fulfill the separation requirement of an absolute divorce. However, a divorce from bed and board does help settle the rights of separating spouses. For example, a complaining spouse might seek a divorce from bed and board to eject the spouse accused of the marital fault from the marital residence or to support a claim for alimony, postseparation support, child custody, child support, or equitable distribution of property under North Carolina law. In addition, a spouse might seek a decree of divorce from bed and board to settle the spouses’ estate rights.
HOW CAN A SPOUSE OBTAIN A DIVORCE FROM BED AND BOARD IN NORTH CAROLINA?
Spouses cannot consent to a divorce from bed and board; instead, an injured spouse must file an action for a divorce from bed and board in court.
A divorce from bed and board is fault-based. In other words, to be eligible for a divorce from bed and board, the complaining spouse must show by the greater weight of the evidence that he or she has been injured by the accused spouse’s actions that fall within one of the six statutory fault grounds. N.C. Gen. Stat. § 50.7 includes the following six grounds for a divorce from bed and board:
1. Abandonment of the family
2. Maliciously turning the complaining spouse out of doors
3. Treating the complaining spouse in such a cruel or barbarous way that it endangers his or her life
4. Indignities that render the complaining spouse’s condition intolerable or life overly burdensome
5. Excessive drug or alcohol use that makes the complaining spouse’s condition intolerable or life overly burdensome
The grounds can have occurred at any time for a divorce from bed and board, unlike for legal actions seeking an absolute divorce, where the grounds for the divorce must have arisen within six months of the divorce. N.C. Gen. Stat. § 50-8.
An explanation of each of these six grounds for a divorce from bed and board follows.
Ground 1: Abandonment of the Family
In marriage, spouses have the mutual right to society, companionship, and intimate relations. When a spouse neglects any one of these obligations, it qualifies as abandonment. To establish the ground of abandonment, the complaining spouse must establish the following four elements under North Carolina law:
1. the accused spouse intentionally ended cohabitation with the complaining spouse;
2. with the intent not to resume cohabitation;
3. without the complaining spouse’s consent; and
4. without provocation.
Intentionally Ending Cohabitation
Typically, a complaining spouse establishes the accused spouse’s intent to end cohabitation by showing the accused spouse left the home and resides elsewhere. Sometimes, it is enough for a spouse complaining of abandonment to show that the accused spouse resides in a separate part of the home or that the accused spouse fails to provide support. Keep in mind that a spouse is not required to show that he or she has been affected financially to establish abandonment. For example, if a spouse provides monetary support but leaves the home or lives separately in the home, a court can still consider that spouse to have abandoned the other spouse.
The intent of the person who abandons a spouse is typically established by the very act of leaving. However, the act must be willful: for example, if a spouse leaves the marital residence due to a court order, the departing spouse does not have the intent required to establish abandonment.
Sometimes a spouse who leaves the marital residence can claim constructive abandonment. To establish a constructive abandonment, the departing spouse must show that the complaining spouse’s behavior drove him or her out of the marital home or into another part of the home, such as through physical abuse or by locking the spouse out of the home. Similarly, a court may consider a spouse who fails to provide financial support to have constructively abandoned a spouse who needs support. Other cases have found constructive abandonment where a spouse fails to participate in raising the couple’s children, where a workaholic spouse emotionally neglects the family, or where a spouse drinks excessively. Keep in mind that most of the behavior that fits the pattern of constructive abandonment will probably satisfy another ground as well, such as the indignities or cruelty grounds.
In sum, the accused spouse’s behavior must make it impossible for the complaining spouse to remain in the marriage with safety, health, and self-respect. So long as the behavior occurred before the complaining spouse withdrew from the marital abode, it qualifies as a potential ground for divorce from bed and board.
Intent Not to Resume Cohabitation
The spouse must intend to live separately on a permanent basis; if the spouse intends to return or in fact does return, then the spouse has not satisfied this element.
Leaving without Consent
To show lack of consent, the complaining spouse must establish the voluntary consent to leave the other spouse. In other words, the spouse must do more than accept the inevitability of splitting up. In addition, the spouses must not have mutually agreed to end living together. If both parties voluntarily consent to living apart, neither spouse can abandon the other.
Leaving without Provocation
A spouse claiming abandonment must prove he or she did not provoke the other spouse. In other words, the abandoning spouse must have had no good reason to leave: the spouse claiming abandonment cannot have engaged in behavior that would have justified the other spouse’s departure. A spouse accused of abandonment may be justified in leaving if the spouse cannot remain in the marital home without endangering his or her safety or health (both physical and emotional).
Ground 2: Malicious Turning Out of Doors
This fault is a subcategory of abandonment that requires one spouse to maliciously or wrongfully evict the other spouse from the home. As with abandonment, the spouse raising this claim may need to establish lack of provocation, depending on the severity of the other spouse’s conduct.
Ground 3: Cruel or Barbarous Treatment Endangering the Spouse’s Life
Though courts initially interpreted this ground narrowly, today, courts recognize that physical and mental or emotional cruelty will satisfy this ground. Usually, spouses in North Carolina pursue mental cruelty under the indignities ground.
To establish cruelty, the spouse must specifically plead the act(s) of cruelty and show that the cruelty was unprovoked. Typically, emotional cruelty will also satisfy the ground of indignities, discussed below.
Ground 4: Personal Indignities
North Carolina law permits a complaining spouse to seek a divorce from bed and board where the accused spouse’s behavior constitutes indignities that make the complaining spouse’s condition intolerable and life burdensome. In short, the law prohibits spouses from engaging in a course of conduct that equates to mental cruelty or the humiliation or degradation of their spouse. To establish this ground, a complaining spouse must establish three things: (1) inappropriate conduct that is (2) committed willfully, maliciously, or consciously with the intent to annoy and (3) without provocation.
The law does not list the incidents of conduct that courts will consider indignities; instead, the courts require a course of conduct revealing a hostile state of mind that makes the complaining spouse’s life intolerable. To establish such a course of behavior, the conduct must occur more than one time, but there is no specific requirement for the length of time the behavior must occur.
The types of behavior that will satisfy the ground of indignities are various. The use of violence or force (or the apprehension of their use) is not required. Many cases involve continued neglect and indifference, constant insults, repeated criticism, nagging (when coupled with other conduct), and sexual conduct (whether demands for sex, inattention to the spouse or attention given to others, or addiction to pornography). Some successful cases have involved false accusations, alcohol and drug abuse, the failure to provide support, and harassment.
In determining whether the behavior makes the complaining spouse’s life intolerable and burdensome, courts consider the complaining spouse’s character, upbringing, sensitivities, and refinement.
The law presumes the accused spouse has the required intent if the act’s natural consequence is to annoy or offend the other spouse, so long as the accused spouse knew the conduct would annoy or alienate the complaining spouse.
Lack of Provocation
To prevail, the complaining spouse must establish that he or she is free from blame for the accused spouse’s conduct. If the complaining spouse can show that the spouse accused of the indignities is more blameworthy, the complaining spouse can show lack of provocation. Note that the complaining spouse does not have to be blameless; rather, if the complaining spouse’s conduct does not excuse the accused spouse’s conduct, no provocation exists.
Ground 5: Excessive Alcohol or Drug Use
If a complaining spouse shows that the accused spouse’s drug or alcohol abuse was excessive and made the complaining spouse’s condition intolerable and life burdensome, then he or she has established this ground. The accused spouse’s intoxication must be more than occasional: the accused spouse must frequently be intoxicated and lack self-control over the use of the drug or alcohol. There is no clear-cut standard for what is excessive use under North Carolina law.
An addiction to alcohol or drugs is no excuse for the behavior unless the complaining spouse has encouraged or induced the excessive use.
Ground 6: Adultery
Marital infidelity is the final ground courts will consider in granting a divorce from bed and board. Note that this behavior may also satisfy the grounds of cruelty and indignities.
HOW CAN AN ACCUSED SPOUSE DEFEND AGAINST A CLAIM FOR DIVORCE FROM BED AND BOARD?
An accused spouse may defend against the alleged grounds for divorce from bed and board by negating the complaining spouse’s evidence of the ground or by raising one of four common-law based defenses:
3. condonation, or
Defense 1: Collusion
Colluding spouses must plot to mislead the court by providing evidence of marital faults that do not exist to procure a divorce from bed and board. This defense is not often raised in North Carolina because the law does not require parties to seek a divorce from bed and board to pursue an absolute divorce, to obtain alimony or child support, to obtain child custody, to divide property, or to arrange a legally binding separation agreement. Therefore, there is no good reason for spouses to deceive the court through collusion.
Defense 2: Connivance
Connivance occurs when the complaining spouse intentionally causes or brings about the accused spouse’s misconduct that gives rise to the ground for divorce. Because the complaining spouse must be free of fault to seek a divorce from bed and board, if the complaining spouse procured the accused spouse’s misconduct, then the complaining spouse is also guilty of marital misconduct.
An accused spouse who alleges connivance must show that the complaining spouse caused, promoted, or encouraged the misconduct. Showing that a complaining spouse has collected evidence of the accused spouse’s misconduct, spied upon the accused spouse, or set traps to obtain evidence of the accused spouse’s misconduct is not sufficient to establish connivance.
Defense 3: Condonation
Condonation is a complaining spouse’s conditional forgiveness of an accused spouse’s marital misconduct and restoring the accused spouse to his or her former status. In short, if the accused spouse has evidence the complaining spouse knew of the marital misconduct and still forgave it, the accused spouse can establish this defense.
To satisfy the knowledge element, the accused spouse must show that the complaining spouse actually knew of the actual offense—not merely suspected it. If the accused spouse is guilty of several acts of misconduct, but the complaining spouse only knows about one of those acts, then the complaining spouse can only forgive the acts he or she knows about.
The accused spouse must also establish that the complaining spouse forgave him or her for the alleged misconduct. The forgiveness can be explicit or implicit. For example, if the complaining spouse knew the other spouse had been unfaithful but continued to live with that spouse and failed to file an action for divorce from bed and board, a court might consider that implicit forgiveness. Merely living together is usually not enough. Most commonly, the implicit conduct that symbolizes forgiveness is cohabitation that is more than temporary along with the showing of the intent to resume married life, including sexual intercourse. Sometimes, the type of marital fault requires a greater showing of condonation, such as when a complaining spouse alleges a course of marital misconduct spanning a length of time.
Finally, regardless of the type of misconduct, the law presumes that the complaining spouse forgives the accused spouse conditionally: that is, if the spouse repeats the misconduct, then the grounds for the divorce from bed and board are revived. This does not require the forgiven spouse to adhere to a perfect standard of behavior, but it does require that spouse not to engage in the same type of misconduct or even any other misconduct.
Defense 4: Recrimination
A final defense available to an accused spouse is showing that the complaining spouse is also guilty of any one of the six grounds for divorce from bed and board. In essence, the accused spouse has to bring evidence sufficient to establish grounds for a divorce from bed and board against the complaining spouse, regardless of whether the accused spouse is actually seeking a separation. The complaining spouse then has the right to raise the common law defenses to the accused spouse’s claims or to negate the accused spouse’s claim with evidence, such as by showing the accused spouse provoked the misconduct.
WHAT ARE THE EFFECTS OF A DECREE OF DIVORCE FROM BED AND BOARD?
Though it does not sever the marriage, a decree of divorce from bed and board may lead to serious consequences relating to a spouse’s rights to cohabitation and to share in a spouse’s estate. A judicial separation may also settle the spouses’ rights to alimony, postseparation support, child custody, and child support.
As an example, the decree may establish marital misconduct, which could serve as the foundation for a spouse’s right to alimony or to make other legal claims. It could also affect property rights in an equitable distribution action to determine the spouses’ marital property rights.
A spouse who successfully obtains a decree of divorce from bed and board retains certain rights, while the unsuccessful spouse will lose a number of privileges. Specifically, the losing spouse may forfeit certain legal rights, such as the following:
• the right to cohabitation
• the right to intestate succession in the estate of the prevailing spouse,
• the right to claim or succeed to a homestead in the other spouse’s real property,
• the right to petition for an elective share of the prevailing spouse’s estate and to take either the elective share provided or to take a life interest,
• the right to administer the prevailing spouse’s estate;
• the right to a year’s allowance in the personal property complaining spouse’s property; and
• any rights or interests in the property of the complaining spouse that by a settlement before or after marriage were settled upon the accused spouse solely in consideration of the marriage.
Cohabitation and Eviction
In a divorce from bed and board, the court dissolves the spouses’ obligation to live together.
If the complaining spouse obtains a decree of divorce from bed and board and owns the couple’s home, the court may issue an order to evict the accused spouse. If the accused spouse is the sole owner of the residence, or if the accused spouse jointly owns the residence with the complaining spouse, the court can award possession to the complaining spouse through an order of alimony, child support, or child custody that is part of the divorce from bed and board decree. The express statutory authority in these statutes gives the court the right to deprive a spouse of property. N.C. Gen. Stat. §§ 50-13.4(e), 50-16.7(a). The state’s domestic violence statute, N.C. Gen. Stat. § 50B-3(a)(2), also provides for awarding possession of the residence to the complaining spouse, regardless of who owns the residence.
A decree of divorce from bed and board has serious implications for the spouses’ rights.
A complaining spouse who prevails in a divorce from bed and board proceeding is entitled to sell marital property, whether personal or real property, without the accused spouse’s consent. Otherwise, the prevailing spouse retains all rights as if there were no decree of divorce. For example, if the accused spouse dies without a will while living separately under a decree of divorce from bed and board, the complaining spouse can inherit from the accused spouse with full spousal privileges, including the right to take an elective life estate, claim homestead rights, and claim a year’s allowance in the accused spouse’s personal property. If the accused spouse has a will, then the prevailing spouse retains the right to dissent from the accused spouse’s will and claim against the will for up to half of the estate (the intestate share).
On the other hand, a decree of divorce from bed and board adversely affects the rights of the spouse the decree was entered against. N.C. Gen. Stat. § 31A-1. For example, the losing spouse no longer has the right of intestate succession. This means that in the absence of a will, the losing spouse does not have the right to inherit from the prevailing spouse’s estate or to take an elective share of the prevailing spouse’s estate. The losing spouse also loses the right to a homestead in the prevailing spouse’s real property. In addition, the losing spouse loses the right to administer the prevailing spouse’s estate, the right to dissent from the prevailing spouse’s will, and the right to a year’s allowance in the prevailing spouse’s personal property.
A decree of divorce from bed and board has no effect on spouses’ property rights in the absence of a statute affecting those rights. Therefore, property that the spouses own separately, as joint tenants, or as tenants by the entirety is not affected.
However, the date the spouses separate under the divorce from bed and board decree may determine what property is properly considered separate or marital property if the spouses ask the court to divide their property: property acquired before the decree will be considered marital property, while property acquired afterward will be deemed separate property.
Support and Custody
A decree of divorce from bed and board does not affect a spouse’s support rights and obligations: if a court imposed certain rights and obligations during the marriage, they remain intact. N.C. Gen. Stat. § 50-13.5. Similarly, a decree of divorce from bed and board does not affect a spouse’s rights to custody of his or her children.
A spouse who is now living separate from his or her spouse may also seek alimony or child support. However, if a complaining spouse proves an accused spouse engaged in marital misconduct, the court may consider this misconduct in awarding or denying alimony. If the accused spouse depends on the complaining spouse for support, the misconduct may cause the court to refuse an order of alimony; if the accused spouse supports the complaining spouse, the court will use the fault to award alimony to the dependent spouse.
Note: A decree of divorce from bed and board means that children who are conceived after the decree is entered are no longer presumed legitimate. If the spouses reconcile, this presumption may be reinstated.
WHAT ABOUT MISCONDUCT AFTER THE DECREE IS ENTERED?
A spouse who engages in misconduct such as adultery, cruelty, indignities, and the like after the decree of divorce from bed and board is entered is still considered to have engaged in marital misconduct since the marriage has not been terminated.
WHAT HAPPENS IF THE SPOUSES RECONCILE?
Under North Carolina law, a decree of divorce from bed and board automatically terminates when spouses reconcile. If the spouses cohabitate after the court enters a decree of divorce from bed and board, their living together may constitute reconciliation. Spouses who hold themselves out as husband and wife or who show the intent to live together permanently and integrate their lives are also considered to have reconciled. However, spouses who resume living together on a trial basis do not have the requisite intent to establish reconciliation.
If a decree of divorce from bed and board terminates due to the spouses’ reconciliation, the accused spouse regains the rights he or she had lost under the decree. If the spouses separate again after reconciling, they must seek a new decree of divorce from bed and board; they cannot reinstate a prior decree.
FILING AN ACTION SEEKING A DIVORCE FROM BED AND BOARD
A spouse seeking a judicial separation must file the action in the appropriate district court. N.C. Gen. Stat. § 7A-244. The proper district court is the one in a county where at least one of the spouses lives. If the complaining spouse lives outside North Carolina, then N.C. Gen. Stat. § 50-8 requires that he or she must file in the district court of the North Carolina county where the defendant lives. N.C. Gen. Stat. § 50-8. The same statute requires that at least one of the spouses must have lived in North Carolina for at least six months (with both the intent to remain in the state and with physical presence in the state) before the complaint is filed.
Unlike in many states, a spouse seeking a divorce from bed and board in North Carolina may request a jury trial. N.C. Gen. Stat. § 50-10.
If more than one ground exists for the divorce from bed and board, the complaining spouse should allege the additional grounds in the complaint. In addition, if the complaining spouse has other claims against the spouse, he or she can join them in the complaint. N.C. Gen. Stat. § 18. For example, parties may join an action seeking alimony or postseparation support with an action seeking a divorce from bed and board. N.C. Gen. Stat. §§ 50-16.2A(a), 50-16.3A(a). Parties can also add an action seeking child support or child custody to these divorce actions. N.C. Gen. Stat. §§ 50-13.5(b), 50-13.5(f). Additionally, parties may choose to join an action for property division. N.C. Gen. Stat. § 50-21(a).