If you’re contemplating a divorce, you may have quite a few questions. That’s understandable. After all, the law can sometimes seem complicated and confusing. One question we’re often asked is – does there have to be a legal “reason” for the divorce? Or said another way, did someone have to do something “wrong” in order for a divorce to proceed?
The short answer to this question is no. In most states, no particular reason is needed for a divorce. This is known as a “no-fault” divorce. While this is true, some states, including North Carolina, still allow for both fault-based and no-fault divorces. Let’s look more closely at what each type of divorce entails, as well as the benefits and drawbacks of each.
What is the Difference Between Fault and No-Fault Divorce?
At its most basic level, no-fault divorce means exactly that – that you don’t need to prove any particular “fault” or marital misconduct by one spouse or the other in order to get divorced. That may seem obvious, but a few decades ago, it would not have been so obvious at all. In fact, it used to be that in the majority of states, some marital misconduct on the part of one spouse or the other was required to get a divorce.
What exactly constituted “marital misconduct” could differ from state to state, but some examples included:
- Infidelity
- Addiction
- Abuse
- Cruelty
- Confinement in prison
- Incurable insanity
- Any number of other behaviors depending upon the state and the circumstances.
In states like North Carolina that allow for either fault or no-fault divorce, it is up to the spouse filing for divorce to decide which option to pursue. A spouse filing for a no-fault divorce in North Carolina must meet two basic requirements. These include:
- Legal Separation: In North Carolina, in order to file for divorce, a couple must be legally separated first. This means that they live separate and apart for at least twelve months, with the intention of ending the marriage.
- Residency: In addition to legal separation, at least one of the spouses must have resided in North Carolina for at least six months before filing for the divorce.
After these requirements have been met, a couple may officially file for divorce and begin the divorce process. The ultimate resolution of the process, whether by agreement or court order, is known as an “absolute divorce.” This is essentially the moment when all of the important divorce-related issues have been addressed, and the parties are considered officially divorced in the eyes of the law.
Divorce from Bed and Board
As we’ve discussed, North Carolina recognizes both fault and no-fault divorce. In North Carolina, a fault-based proceeding is often known as a “divorce from bed and board.”
This term can be somewhat confusing, as divorce from bed and board is not an absolute divorce. As a result, those who are pursuing a divorce from bed and board are still legally married while doing so.
Essentially, a divorce from bed and board is a court-ordered separation that enables the spouse who has been harmed to resolve certain important issues like child visitation and custody, support, and alimony. It may also cause the at-fault spouse to lose some marital benefits, like estate rights, for example.
Only the injured spouse can initiate a divorce from bed and board, and to do so successfully, must prove one of the following grounds:
- Abandonment
- Maliciously forcing a spouse to leave the home
- Treating a spouse so severely that life becomes intolerable
- Endangering the spouse’s life through cruel treatment
- Substance abuse
- Adultery
Those who can prove one of these grounds for fault may consider filing for a divorce from bed and board. Even though this is not an “official” divorce, some of the reasons that one spouse might choose this option include:
- Maintaining eligibility for health insurance, retirement benefits, and social security benefits.
- Eventually working toward and establishing a marital settlement agreement on their own terms and timeline.
- Being able to address important issues while also allowing additional time to prepare themselves and their children for an eventual absolute divorce.
- A variety of other reasons unique to each couple’s circumstances.
Understandably, the concept of divorce from bed and board may seem slightly confusing. That’s understandable. If you are considering this option, you will certainly want to consult with an attorney who knows and understands the law.
Does Fault Matter in Any Other Way?
While fault certainly matters in a divorce from bed and board, that doesn’t mean it doesn’t matter in a “no-fault” divorce. While no-fault divorce does mean that the parties don’t need a reason to get divorced, it doesn’t mean that fault won’t be considered in any way. On the contrary, fault may become very important in the process of addressing the issues that exist between the parties.
Ultimately, if the case goes before a judge, he or she will have the discretion to consider fault in addressing issues like alimony, child custody, and other matters. If, for example, a spouse has been abusive, a judge certainly has the authority under the law to consider that abusive behavior when it is making decisions on child custody. Likewise, when considering alimony, a court has the discretion to award more alimony to one spouse who has been harmed by the other if the court finds that doing so is appropriate.
For these reasons, even if you are pursuing a no-fault divorce, you should gather and present evidence regarding fault. Ultimately, consulting with an attorney regarding your particular circumstances is always the best choice. These matters can be complicated and highly emotional, and an attorney who knows and understands the law can give you the advice and guidance you need during a difficult time.
The Law Office of Dustin McCrary – Here for You, Each Step of the Way
At the Law Office of Dustin McCrary, we know and understand every aspect of divorce law. Why? Because divorce is all we do. We believe our clients deserve our entire focus. After all, the decision to divorce is one of the most significant many people make in their lives. You need and deserve to have a guide with you on this journey who understands the path ahead and can help you navigate the difficult parts to reach a better and brighter chapter in the future. We’re here to help you do exactly that. We’d love to talk to you if you’re ready to get started. Give us a call today. We look forward to speaking with you soon.