In North Carolina, you can obtain a legal separation by going to court and asking for what is called a divorce from bed and board. This type of divorce does not end your marriage, but it does affect the rights you and your spouse have with regard to each other’s estates.
Grounds for Divorce from Bed and Board
Only the injured spouse can request a divorce from bed and board. Under North Carolina law, to qualify for a divorce from bed and board, you must show that your spouse has committed a marital fault. In this state, six types of faults will establish grounds for a divorce from bed and board. They are:
- Abandonment of the family
- Maliciously turning a spouse out of doors
- Treating a spouse in such a cruel or barbarous way that it endangers his or her life
- Indignities that render a spouse’s condition intolerable or life overly burdensome
- Excessive use of drugs or alcohol that makes a spouse’s condition intolerable or life overly burdensome
To establish abandonment, the complaining spouse must show four things: (1) that the accused spouse intentionally stopped living with the complaining spouse, whether by moving to a separate residence or a separate part of the home, or by constructive abandonment, which means the departing spouse was driven to leave by the other spouse’s behavior (such as by physical abuse, emotional neglect, excessive drinking, and the like); (2) that the accused spouse does not intend to resume cohabitation; (3) that the complaining spouse did not consent to the separation; and (4) that the complaining spouse did not provoke the accused spouse’s departure.
Malicious Turning Out of Doors
As the name implies, malicious turning out of doors means that the accused spouse must have wrongfully evicted the complaining spouse from the home.
Cruel and Barbarous Treatment
Though the name suggests it, cruel treatment does not necessarily require the complaining spouse to allege physical violence. North Carolina courts have expanded the definition of cruel behavior to encompass emotional and mental cruelty. A spouse who complains of cruel treatment cannot have provoked the behavior.
Under North Carolina law, to qualify as an indignity, behavior must be intended to affect a spouse’s self-respect or to otherwise humiliate or degrade the spouse. The conduct must be a course of incidents that reveal the accused spouse’s hostility toward the complaining spouse: one incident will not suffice. Examples of conduct that courts have found to satisfy this ground include neglect, nagging, indifference, insults, criticism, alcohol and drug abuse, harassment, and an addiction to pornography, among many other things. The conduct must have been intended to annoy the complaining spouse. In addition, the complainant must show that he or she did not provoke the misconduct.
Excessive Drug and Alcohol Abuse
If an accused spouse’s addiction to or excessive use of alcohol or drugs had a detrimental effect on the complaining spouse’s life, then this is a sufficient ground for a divorce from bed and board. The complaining spouse must show the intoxication must be more than occasional: to prevail, the accused spouse must be under the influence frequently and regularly lack self-control.
Marital infidelity, which may also satisfy other grounds such as cruelty and indignities, is an additional ground supporting a divorce from bed and board.
Defenses to a Claim for Divorce from Bed and Board
To defeat a spouse’s claim, an accused spouse can show that the complaining spouse’s evidence is false. Alternatively, the accused spouse can rely on one of four defenses: collusion, connivance, condonation, or recrimination.
Typically, spouses in North Carolina do not use collusion as a defense. A colluding spouse is one who plots with the other spouse to establish evidence of marital faults that do not exist in order to obtain a divorce decree. The other three defenses are more widely used.
A spouse who connives is one who brings about the accused spouse’s misconduct. The fact that the complaining spouse sets up the accused spouse to fail is marital misconduct. Simply collecting evidence of an accused spouse’s misconduct is not enough: the complaining spouse must take acts that entrap the accused spouse.
If a complaining spouse knows of and forgives an accused spouse’s misconduct, then the accused spouse can raise the defense of condonation. The forgiveness can be explicit (as in the statement “I forgive you”), or it can be implicit, as demonstrated by certain acts, such as by allowing the accused spouse to return to the marital home and resume cohabitation.
Recrimination is a defense where the accused spouse asserts that the complaining spouse is equally guilty of marital misconduct. The misconduct may be any one of the six grounds for divorce from bed and board. To prevail, the accused spouse must essentially establish sufficient grounds to secure a decree of divorce from bed and board, regardless of whether the accused spouse actually wants to separate. That is, the accused spouse must establish the ground for divorce and show that the accused spouse did not provoke the complaining spouse.
The complaining spouse can then defend against the accused’s claim by showing evidence to negate the accused’s claim or by employing the defenses of connivance or condonation.
Effects of a Decree of Divorce from Bed and Board
A decree of divorce from bed and board has a significant impact on the losing spouse’s rights. The impact on some of these rights is described briefly below.
Right to cohabitation. A divorce from bed and board extinguishes the spouses’ right and obligation to live together as man and wife. It is possible that the court can award the prevailing spouse the marital residence as well.
Right to intestate succession. The losing spouse no longer has the right to inherit from the prevailing spouse, absent a provision in a will to the contrary.
Right to petition for an elective share. The losing spouse loses the right to petition the court for an elective share of the prevailing spouse’s estate.
Right to homestead. The losing spouse loses the right to a homestead in the prevailing spouse’s property.
Right to dissent. The losing spouse loses the right to dissent from the prevailing spouse’s will.
Right to administer the spouse’s estate. The losing spouse loses the right to administer the prevailing spouse’s estate.
On the other hand, the spouse who prevails in a divorce from bed and board action retains many rights. These rights include the right to sell marital real and personal property without the accused spouse’s consent, to inherit from the accused spouse, to take an elective share in the accused spouse’s estate, to claim homestead rights, to claim a year’s allowance in the accused spouse’s personal property, and to dissent from the accused spouse’s will.
A decree of divorce from bed and board has no effect on certain other rights. These rights include spouses’ property rights, regardless of whether the spouses own the property as joint tenants, tenants by the entirety, or separately; alimony or postseparation support; child custody; and child support.
Effects of Reconciliation on a Decree of Divorce from Bed and Board
If the spouses decide not to live separately and resume marital cohabitation after a court issues a decree of divorce from bed and board, the decree terminates. To reconcile, the spouses must intend to live together permanently, not on a trial basis. If the spouses reconcile, the accused spouse regains the rights lost under the decree. If the spouses separate again later, they will need to obtain a new decree in a new action filed with the court.
Filing for a Decree of Divorce from Bed and Board
The injured spouse seeking a divorce from bed and board must file in the district court where one of the spouses resides. At least one of the spouses must have lived in North Carolina for at least six months before filing for divorce.
Learning More about Divorce from Bed and Board
To continue reading about divorce from bed and board in North Carolina, review our detailed article.