In North Carolina, you must live separate and apart for at least one year before you can file for divorce, so what happens if you spouse won’t move out? One of your options may be a divorce from bed and board.
Here are the answers to 6 frequently asked questions about divorce from bed and board:
- What is divorce from bed and board?
In North Carolina a divorce from bed and board does not dissolve your marriage or mean you are divorced, but it is a legal separation. This does not mean if you do not have a divorce from bed and board that you are not separated for the purpose of divorce, but it does force one spouse out of the home if granted.
Filing for a divorce from bed and board is not a commonly used legal tool, but as you will read below it can have a significant impact on other aspects of your family law matter, as outlined below.
- What is required to get a divorce from bed and board?
To establish a claim for divorce from bed and board, the complaining party must prove that a party is domiciled in North Carolina for at least 6 months prior to filing your claim, that they are legally married, and that they suffered an injury listed below from the guilty spouse without any fault of their own.
Our statute, N.C. General Statute § 50-7, outlines 6 ways a complaining spouse can be injured. They are as follows:
(1) Abandons his or her family.
(2) Maliciously turns the other out of doors.
(3) By cruel or barbarous treatment endangers the life of the other.
(4) Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.
(5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
(6) Commits adultery.
- Can I file for divorce from bed and board if my spouse already filed for divorce from bed and board?
Yes, either spouse with may file for a divorce from bed and board, regardless of whether the other spouse has filed.
That being said, a lot of other factors can come into play and you should always consult with an experienced family law attorney regarding your particular case.
- What are other benefits and consequences of a divorce from bed and board?
A divorce from bed and board can also benefit you after your spouse has moved out of the home. For example, if a judge grants a divorce from bed and board, the injury/misconduct can be used to establish a claim for alimony for the complaining spouse (or defeat a claim for alimony if the complaining spouse is also a supporting spouse).
A divorce from bed and board can also establish a conclusive date of separation, which can have a significant effect on how martial and separate property is evaluated in a property distribution case.
The most obvious consequence for the guilty/losing spouse in a divorce from bed and board claim is being evicted from the marital home—regardless of whether they are a legal owner of the property.
The guilty spouse could also lose the ability to have certain marital privileges, despite still being legally married. For example, the guilty spouse will lose the right to inherit property should the innocent spouse die without a will (although the innocent spouse does not lose their inheritance rights against the guilty spouse’s estate).
- How can a spouse defend against a claim for divorce from bed and board?
There are four defenses that our courts recognize to divorce from bed and board. Collusion (when one spouse deceives a court by providing false evidence of the injuries bulleted above), connivance (when a complaining spouse has caused, promoted, or encouraged the injury), condonation (when the complaining spouse has forgiven the injury and resumed the marital relationship), and recrimination (where the complaining spouse is has also committed one of the injuries outlined above).
- What if spouses reconcile after a divorce from bed and board is granted?
If the spouses reconcile, the divorce from bed and board terminates and all the rights that were lost by the guilty spouse are reinstated. Spouses who resume living together on a trial basis may not be considered to have reconciled and if a child is conceived after the divorce from bed and board is granted that child is not presumed to be a legitimate child of the marriage.
If you have a spouse that will not move out of the home or you have been sued for divorce from bed and board, you should speak with a divorce attorney immediately. Our Raleigh Divorce Lawyer can help! Call us to schedule an initial consultation for personalized legal advice to your specific set of facts.
