Divorce From Bed and Board
Get Your Spouse To Move Out
Kirkman Attorneys at Law
A Divorce from Bed and Board is a fault-based legal action filed by one spouse against the other alleging that the other spouse committed marital misconduct. A Divorce from Bed and Board, unlike Absolute Divorce, is not an actual divorce that dissolves the marriage. Rather, a Divorce from Bed and Board is a judicial separation based upon marital fault. Even if a judge grants a party a Divorce from Bed and Board matrimonial bonds still exist which prevents the parties from remarrying until an Absolute Divorce is granted.
In many cases, a divorce from bed and board is not necessary. A divorce from bed and board, resulting in a court-ordered legal separation, is not required to fulfill the separation requirements of an Absolute Divorce. However, in situations where the parties cannot agree upon a separation and neither party will move from the marital residence, a spouse might seek a divorce from bed and board in an attempt to get the court to eject the other from the marital residence as a result of the other spouse’s marital misconduct. Furthermore, the entry of a divorce from bed and board can provide strategic benefits to other claims connected with a party separation and impending absolute divorce, such as alimony and postseparation support. In some cases, a spouse might want to seek a divorce from bed and board to terminate the other spouse’s estate rights.
Grounds for Divorce from Bed and Board
Under North Carolina law, a Court may grant a divorce from bed and board, if one of the following is proven:
(1) A party abandons his or her family.
(2) A party maliciously turns the other spouse out of doors.
(3) By cruel or barbarous treatment, a party endangers the life of the other spouse.
(4) A party offers such indignities to the other spouse as to render the other spouse’s condition intolerable and life burdensome.
(5) A party becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
(6) A party commits adultery.
Defenses to Divorce from Bed and Board
How can an accused spouse defend against a claim for divorce from bed and board?
A spouse accused of marital misconduct can defend against divorce from bed and board by one of four ways; (1) collusion, (2) connivance, (3) condonation, or (4) recrimination.
What is Collusion?
The defense of collusion does not arrise often in the context of a divorce from bed and board claim. Collusion occurs where the parties plotted or otherwise acted together or in concert with each other to provide evidence in support of a legal claim where the evidence does not actually exist. In other words, collusion is a pact between two people to deceive a court with the purpose of obtaining something that they would not be able to get through legitimate judicial channels. Since marital misconduct is no longer required to obtain an absolute divorce, this defense rarely arises.
What is Connivance?
Connivance occurs when the spouse alleging the other committed misconduct has intentionally caused or bought about the accused spouse’s misconduct that is alleged to give rise to the legal claim. To prove the defense of connivance, the accused spouse must prove that the complaining spouse caused, encouraged, promoted, or otherwise brought about the alleged misconduct.
What is Condonation?
Condonation can be asserted by the accused spouse when the complaining spouse has in some way forgiven or condoned (in some way or at some level supported the behavior) the act in which the complaining spouse contends is misconduct. Condonation requires that the complaining spouse had knowledge of the misconduct and forgave the accused spouse or in some way condoned it by and through the complaining spouses actions, deeds, or words. As it applies to marital misconduct, condonation defense is most often raised when a married couple engages in sexual relations after one spouse learns that the other spouse has engaged in adultery.
To establish that the complaining spouse had knowledge, the accused spouse must prove that the complaining spouse had actual knowledge of the actual offense. Showing that the complaining spouse suspected that the accused spouse was engaging in acts of marital misconduct is insufficient to establish the knowledge component of the condonation defense. Likewise, is the accused engaged in several acts of misconduct but the complaining spouse doesn’t know about all of the acts (but may know some of them), then the complaining spouse cannot have condoned those acts in which the complaining spouse had no knowledge of.
What is Recrimination?
Recrimination occurs when the accused spouse can show that the complaining spouse has also committed acts of marital misconduct (one of the six grounds for divorce from bed and board). In other words, the complaining spouse also has ‘unclean hands.’ If the accused spouse can provide grounds for divorce from bed and board against the complaining spouse, then the accused spouse could assert the defense of recrimination.
Is there a waiting period to file for Divorce from Bed and Board?
Unlike a an absolute divorce which requires one (1) year of separation before filing in North Carolina there is no waiting period to file for divorce from bed and board.
What is the effect of Divorce from Bed and Board?
A divorce from bed and board is a judicial determination of marital fault against one spouse. A decree of divorce from bed and board has a significant impact on those accused spouse’s rights, A divorce from bed and board ends the spouse’s right and obligation to live together as a married couple. In connection to a divorce from bed and board, the complaining spouse often seeks possession of the marital residence. A decree of divorce from bed and board can also be used as evidence in alimony, postseparation support, custody, and even equitable distribution. Additionally, a divorce from bed and board has a significant impact on the accused spouse’s estate rights while leaving the complaining spouse’s estate rights intact.
With regards to estate rights, the spouse found to have committed misconduct (1) no longer has the right to inherit from the other spouse (unless the other spouse has a will which says otherwise), (2) no longer has the right to request the court to grant him/her an elective share of the other spouse’s estate, (3) no longer has the right to dissent from the other spouse’s will, and (4) no longer has the right to administer the other’s estate. Meanwhile, the complaining spouse now (1) has the right to sell property without the spouse who committed misconduct’s consent, (2) retains the right to inherit from the other spouse, (3) retains the right to request the court to grant him/her an elective share of the other spouse’s estate, (4) retains the right to dissent from the other spouse’s will, and (5) retains the right to claim a year’s allowance in the other spouse’s personal property.
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; child custody; and child support.
Filing for a Decree of Divorce from Bed and Board
For a spouse to file for divorce from bed and board in North Carolina, at least one of the spouses must have resided in North Carolina for at least six months prior to the filing of an action seeking divorce from bed and board in an appropriate district court. Generally, the appropriate district court is a district court of North Carolina where at least one of the spouses resides. To file, the complaining spouse must file with the Clerk of Court a Complaint and cause a Civil Summons to be issued to the accused spouse. The Complaint must state sufficient allegations to put the accused spouse on notice as to what the complaining spouse intends to prove at trial which will establish one of the fault-based grounds for divorce from bed and board. If more than one ground exists to seek a divorce from bed and board, the complaining spouse should allege all of the grounds in the complaint (and not just one). A complaint that seeks divorce from bed and board must be verified (sworn to under oath by the spouse who files) and it must contain the required allegations of residency. Either spouse may request a jury trial of the claim for divorce for bed and board. The right to a 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.
What is the Burden of Proof Required to obtain a Decree of Divorce from Bed and Board?
The complaining spouse must prove the grounds for divorce from bed and board by the greater weight of the evidence.