In North Carolina, there are 2 types of divorce:
- Divorce From Bed and Board and
- Absolute Divorce.
An absolute divorce erases the marital contract between spouses so that they are no longer married. To qualify for an absolute divorce, the parties must live separate and apart for at least one year with one spouse having the intent to not live as husband and wife. No-fault is required to obtain an absolute divorce. Although most couples obtain an absolute divorce, there are some situations where the couple proceeds with a divorce from bed and board. This article will explain what a divorce from bed and board entails and the grounds on which the divorce may be obtained.
What is the definition of a divorce from bed and board?
A divorce from bed and board (DBB) is North Carolina’s version of fault-based divorce. It differs from an absolute divorce because it REQUIRES fault on part of one of the spouses. It is best explained as a “partial” divorce. The parties are legally separated and are required to live apart, but technically remain married. In fact, neither party is free to remarry. You are probably thinking to yourself “Why would anyone want this type of divorce”. Well, that’s a very good question. We will attempt to rationalize the need of a DBB as well as explain the grounds and legal effects of a DBB.
What are the grounds for a divorce from bed and board?
In North Carolina, the divorce from bed and board must be based on 1 of the 6 following grounds:
- Abandonment of the family,
- Maliciously evicting the innocent spouse out of the marital home
- Treating the complaining spouse in such a cruel or barbarous way that it endangers his or her life
- Indignities that make the innocent spouse’s condition intolerable or renders their life overly burdensome
- Excessive use of alcohol or drugs that makes the innocent spouse’s condition intolerable or renders their life overly burdensome
Because a divorce from bed and board is fault-based, it cannot be a mutual agreement by the spouses. The injured spouse is the only spouse who can petition the court for a DBB. North Carolina courts are not allowed to grant a no-fault divorce from bed and board. In addition to proving 1 of the 6 grounds stated above, the injured spouse must also prove that the marital misconduct was not provoked by his or her conduct.
What are the legal effects of divorce from bed and board?
Since a DBB is basically court-ordered separation, if a married couple begins living together again after the divorce is granted, the divorce from bed and board is declared void. However, as long as the DBB remains valid, a spouse from whom a DBB has been obtained loses several important rights. The guilty spouse cannot inherit any real or personal property from a deceased innocent spouse. For example, if the innocent spouse dies without a will, the guilty spouse cannot inherit anything through intestate succession. Additionally, if the innocent spouse dies with a will, the guilty spouse cannot take under the will even though there are provisions executed in their favor.
Why do some people choose to get a divorce from bed and board instead of an absolute divorce?
Now we come to the question of why anyone would choose to obtain a divorce from bed and board instead of an absolute divorce. When one spouse refuses to enter into a separation agreement, divorce from bed and board could be a solution. A DBB can settle the rights of the separating spouses. The innocent spouse might seek a DBB to eject the spouse accused of marital misconduct from the shared home or to support a claim for alimony, post-separation support, or child support.
Others choose to obtain a DBB for religious reasons. For example, they are unhappy in their marriage but their religious beliefs forbid divorce. If a DBB is granted, the marriage is still technically alive, but the spouses are ordered not to live together.
Contact Emblem Legal
If you are contemplating obtaining a divorce from bed and board please contact Emblem Legal, PLLC. There are many other important facts that this article does not discuss. Additionally, there are several defenses that the guilty spouse may assert which would prevent a divorce from bed and board from being accomplished.