Divorce can be a difficult decision that affects every aspect of your life. Not only can it have an emotional impact, but a financial one as well. If you’re considering ending your marriage, it’s important to fully understand your legal rights — and learn about all of your options. In North Carolina, there are a few different avenues you might be able to pursue if you’re thinking about divorce, including obtaining a “divorce from bed and board.”
There are effectively two grounds for divorce in North Carolina. The spouses must either have (1) been living separate and apart for at least one year or (2) one of the spouses was diagnosed with incurable insanity. A divorce based on separation for one year does not require a showing fault by a spouse.
There are some cases in which a spouse will not leave the marital home, even if the marriage is not working out and the other wishes to divorce. This can sometimes make it difficult to meet the separation criteria that must be satisfied in order to obtain a divorce. In situations involving abuse, mistreatment, or adultery, filing for a divorce from bed and board may be the best way to proceed.
A “divorce from bed and board” is not an absolute divorce in North Carolina. Rather, it is a legal separation ordered by the court that allows the spouses to remain legally married while living separate and apart. However, this type of action is not necessarily applicable in every situation. The spouse seeking a divorce from bed and board must prove serious fault on the part of the other.
Under the divorce from bed and board North Carolina statute, a judge may grant a legal separation under the following circumstances:
At least one of the spouses must have lived in North Carolina for six months or more before the action for divorce from bed and board was filed. Additionally, it’s essential to be aware that after the separation has been granted, the spouses must still wait one year to file for an absolute divorce. Until an absolute divorce has been ordered by the court, the spouses cannot remarry.
Although a marriage is not dissolved by obtaining a divorce from bed and board, spousal rights are still affected. Importantly, the rights of the spouse who committed fault are impacted significantly. Specifically, if the divorce from bed and board is granted, the accused spouse no longer has the right to cohabitate with the other or inherit their spouse’s property in the event that they pass away intestate. They also lose their rights to occupy the marital home and their elective share rights, which require that a certain percentage of a spouse’s estate be distributed to the other regardless of whether there is a will.
Notably, if the spouses reconcile after a decree of divorce from bed and board has been issued by the court, the lost rights of the accused spouse will have been regained. If this occurs, a new action will need to be filed if the spouses later decide to separate again.
The spouse who prevails in an action for a divorce from bed and board retains their right to inherit their property if they die without a will. In addition, they maintain their elective share and homestead rights, as well as the right to a year’s allowance to their spouse’s personal property.
Critically, property division, child custody and support, and post-separation support are all issues that will still need to be resolved — since a divorce from bed and board is based on fault, the decree may also substantially impact these claims during divorce proceedings.
When a spouse files for a divorce from bed and board, the accused spouse has the opportunity to raise defenses in court to show that they’re not at fault. They may be able to prevail in the case if they can prove that the evidence was false or that the complaining spouse was also guilty of misconduct based on any of the North Carolina fault grounds. Provocation of the other spouse’s behavior, setting up the accused spouse to commit the misconduct, or establishing that the filing spouse condoned the behavior are also common defenses.
At The Twiford Law Firm, we know that facing divorce isn’t easy. Our skilled and knowledgeable divorce and family law attorneys take the time to understand your goals and objectives. We will guide you through every step of the North Carolina divorce process to help ensure a positive outcome in your case. With offices located in Moyock and Elizabeth City, The Twiford Law Firm provides trusted and compassionate representation for divorce, matrimonial matters, and family law issues throughout Northeastern North Carolina and the Outer Banks. Contact us today to schedule a consultation to learn how we can help.