Under North Carolina law, you can obtain a legal separation called a divorce from bed and board. Unlike an absolute divorce, a divorce from bed and board does not completely end a marriage, but it does affect each party’s rights with regard to each other and each other’s estate.
To receive a divorce from bed and board, an injured spouse must show that the accused spouse has committed one of the following marital faults:
- Abandonment of the family;
- Malicious turning out of doors of the injured spouse;
- Cruel and barbarous treatment that endangers the injured spouse’s life;
- Indignities that render the injured spouse’s life intolerable or overly burdensome;
- Excessive drug or alcohol use that makes the injured spouse’s life intolerable or overly burdensome;
To prove abandonment, the complaining spouse must show: (1) the accused spouse intentionally stopped living with the other spouse by moving to a separate residence or separate part of the home or by constructive abandonment caused by behavior such as physical or emotional abuse; (2) the accused spouse does not intend to resume cohabitation; (3) the complaining spouse did not consent to the separation; and (4) the complaining spouse did not provoke the accused spouse’s departure.
Malicious Turning Out
This means that the accused spouse wrongfully evicted the injured spouse from the home.
Cruel and Barbarous Treatment
North Carolina courts have held the definition of cruel behavior is based on emotional and mental cruelty. This treatment does not have to be physical abuse. The injured spouse must not have provoked the behavior.
An indignity is behavior by the accused spouse intended to affect a spouse’s self-respect or to humiliate or degrade the injured spouse. The behavior must be a course of incidents that show the accused spouse’s hostility toward the other spouse and it cannot be an isolated incident. Examples of such behavior include neglect, nagging, indifference, insults, criticism, alcohol and drug abuse, harassment, and addiction to pornography. This behavior must have been intended to annoy the complaining spouse. The complaining spouse must not have provoked the behavior.
Excessive Drug and Alcohol Abuse
The complaining spouse must show the accused spouse’s intoxication was more than just occasional. It must occur frequently and the accused spouse must regularly lack self-control. The accused spouse’s addiction or excessive use of alcohol or drugs must have a detrimental effect on the complaining spouse’s life.
Marital infidelity may also satisfy the grounds of cruelty and indignities or on its own as a ground for a divorce from bed and board.
The accused spouse can defeat a claim for divorce from bed and board if they can show the complaining spouse’s evidence is false. The defenses of collusion, connivance, condonation or recrimination are also available.
Collusion: A colluding spouse is one who plots with the other spouse to obtain a divorce decree based on false evidence of marital faults. This defense is rarely used.
Connivance: A complaining spouse who sets up the accused spouse to fail is considered connivance and marital misconduct. The accused spouse must show that the complaining spouse acted to entrap the accused spouse.
Condonation: The accused spouse can raise the defense of condonation if the complaining spouse knows of and forgives an accused spouse’s misconduct. The forgiveness can be explicit, such as an outright statement of forgiveness. Or, the forgiveness can be implicit, such as allowing the accused spouse to return to the marital home and resume cohabitation.
Recrimination: For this defense to be a success, the accused spouse must show that the complaining spouse is equally guilty of marital misconduct. The misconduct may be based on any of the six grounds discussed above. The accused spouse must establish sufficient grounds to secure a divorce from bed and board, regardless of whether the accused spouse actually wants to separate. The accused spouse must not have provoked the complaining spouse’s behavior. Further, the complaining spouse can defend against the accused spouse’s claim by showing evidence to negate the claims or by the defenses of connivance or condonation.
A decree of divorce from bed and board can affect the losing spouse’s rights, such as the following:
- Right to cohabitation: A divorce from bed and board ends the spouses’ right and obligation to live together as a married couple. The court may award the prevailing spouse the marital residence;
- Right to intestate succession: The losing party no long has the right to inherit from the prevailing spouse, unless there is a will stating otherwise;
- Right to dissent: The losing party loses the right to dissent from the prevailing party’s will;
- Right to homestead: The losing party loses the right to a homestead in the prevailing party’s property;
- Right to administer the spouse’s estate: The losing party loses the right to administer the prevailing party’s estate.
The prevailing party may retain the right to administer their spouse’s estate as well as the right to sell marital real and personal property without the losing party’s consent, the right to inherit from the losing party’s estate, the right to claim homestead rights, the right to claim a year’s allowance in the losing party’s personal property and the right to dissent from the losing party’s will.
Certain rights, such as spouse’s property rights, alimony, post-separation support, child custody and child support are not affected by a decree of divorce from bed and board.
If the couple decides to resume marital cohabitation after a court issues a decree of divorce from bed and board, the decree is terminated. Reconciliation is defined as the spouses having the intent to live together permanently. If reconciliation occurs, the accused spouse regains the rights lost under the decree. If the couple separates again, they will have to file a new action with the court in order to obtain a new decree.
The complaining spouse must file in the district court where one of the spouses resides and at least one of the spouses must have lived in North Carolina for at least six months prior to filing.