Types of Divorce in North Carolina:
North Carolina recognizes two forms of divorce: (1) Absolute Divorce and (2) Divorce from Bed and Board.
An absolute divorce functions to terminate the marriage so that the parties are no longer legally married. To obtain an absolute divorce the parties must have lived separate and apart for at least one (1) year with the intent to not live as husband and wife. To obtain an absolute divorce there does not have to marital fault for the breakup of the marriage. This is the primary distinction between absolute divorce and divorce from bed and board. The later requires a finding of fault for the breakup of the marriage.
Divorce from Bed & Board
Divorce from bed and board is frequently referred to as “legal separation.” It does not legally dissolve the marriage. The parties to a divorce from bed and board remain in the eyes of the law as husband and wife.
So why get a divorce from bed and board?
There are many reasons why a spouse may seek a divorce from bed and board. Perhaps the most frequent is that the other spouse refuses to enter into a separation agreement (a contract dealing with the various issues that arise from husband and wife agreeing to live separate and apart). Other reasons include: removing a violent spouse from the home, settling estate rights, Medicaid eligibility, preserving or supporting claims for post separation support, alimony, or property division.
What is required to obtain a divorce from bed and board?
As noted above, the primary distinction between absolute divorce and divorce from bed and board (legal separation) is that there must be marital fault for a court to award a divorce from bed and board. To obtain a divorce from bed and board, the spouse that is not at fault must file a complaint in District Court with the Clerk of Court in the county where that spouse lives. The complaint must include the marital fault grounds for the divorce from bed and board.
Marital fault comes in various forms and frequently multiple forms of fault are at play in a complaint for divorce from bed and board. There are six (6) grounds for divorce from bed and board, identified by statute in North Carolina General Statue §50-7 as: (1) Abandonment of the family, (2) maliciously turning out of doors (3) cruel or barbarous treatment endangering the life of the other, (4) offering such indignities to the person of the other so as to render his or her condition intolerable and life burdensome, (5) excessive use of alcohol and/or drugs, and (6) committing adultery.
What is the effect of obtaining a divorce from bed and board?
As noted above a divorce from bed and board is not actually a divorce – it does not dissolve the marriage. However, there are serious consequences of the legal separation involving: cohabitation, property rights, estate rights, spousal and child support, and custody.
- Cohabitation: a divorce from bed and board dissolves the legal obligation of husband and wife to live together. It also may entitle the prevailing spouse to ask the court to evict the losing spouse from the marital home.
- Property Rights: Generally, property rights that attach because of marriage remain intact after a decree for divorce from bed and board including right to property owned as tenants by the entirety. Unlike an absolute divorce which converts tenants by the entirety property to tenants in common property, divorce from bed and board does not have the same effect – rights to joint management and control remain intact. The divorce from bed and board may include equitable distribution legally dividing the marital property between the parties.
- Estate rights: Divorce from bed and board does have a substantial effect on estate rights including: (1) the right to intestate succession in the estate of the prevailing spouse; (2) The right to petition for an elective share of the prevailing spouse’s estate and to take either the elective share provided or to take a life interest; (3) The right to administer the prevailing spouse’s estate; and (4) The right to a year’s allowance in the personal property
- Spousal and Child Support: The decree for divorce from bed and board on its own has no effect on spousal or child support. However, the separation that follows the decree may cause a dependent spouse to seek alimony (either temporary or permanent), and child support
- Child Custody: Similar to child support, the decree for divorce from bed and board itself does not have an effect on custody of minor children, but it may prompt and action for custody which runs in conjunction with the action for divorce from bed and board. Divorce from bed and board does have an important impact on one incident relating to children. Because the law presumes that children born to an intact marriage are legitimate, a divorce from bed and board affects that presumption. Since the law presumes that sexual relations between spouses ceases once the decree is entered, children conceived after the decree are not presumed to be legitimate.
Divorce from bed and board is a complex field of law that an experienced attorney may use as a tool to assist you if you are seeking to have a legal separation and your spouse refuses to sign a separation agreement. Because a divorce from bed and board has serious consequences you should seek legal counsel if you feel it is a legal remedy that may help your situation. The attorneys are Parke Law Offices have experience and knowledge to help with a divorce from bed and board. Contact us today for a free consult.