Divorce from Bed and Board: Not just a legal separation

“He wants a no-fault divorce, whereas I would prefer to have the bastard crucified.”
—J.B. Handlesman

Divorce from Bed and Board (or A Mensa Et Thoro as those fancy Latin types used to call it) is commonly described simply as a judicial separation. However, a Divorce from Bed and Board carries with it several serious consequences including but not limited to: 1) establishing marital misconduct or fault, which may serve as a foundation to an alimony claim, criminal charges, or inadvertently effect a judge’s mindset; 2) extinguishing intestate and probate rights of the party found to be at fault in the estate of the non-fault party; 3) has a considerable effect on the real property rights of the parties; and 4) yes—it does establish the date of separation, which could affect the marital property rights of either party in an equitable distribution action. Without considering these considerable effects, an attorney or pro se litigant could place their client or themselves in an untenable situation.

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“The difference between divorce and legal separation is that a legal separation gives a husband time to hide his money.”
—Johnny Carson

In North Carolina, what most people call a divorce is actually an absolute divorce. An absolute divorce means that a court has determined that the marital contract between a husband and wife that was entered into during the wedding ceremony is now severed; the parties are no longer intermarried. In order to meet the requirements for an absolute divorce in North Carolina, the parties must remain separate and apart with the intent to not be in the relationship of man and wife for at least one full year. Hence, there is no such thing as a “quickie” divorce in North Carolina.

Because it takes at least a year to get a divorce, the problem arose on how North Carolina couples could effectuate a separation between the parties when the situation was not conducive to such a separation, as when there exist instances of marital abuse, manipulation, or adultery.

Divorce from Bed and Board is a fault based solution to a non-harmonious marriage and as such does not just force a simple judicial separation. Divorce from bed and board forces a separation in a manner that favors the injured party and disfavors the party found guilty of fault during the marriage. There are several statutory grounds for Divorce from Bed and Board. These grounds are enumerated in N.C. Gen. Stat. § 50-7, which states:

[A] court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases if either party:

(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. In addition, the court may grant the victim of such treatment the remedies available under G.S. 50B-1, et seq.

(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.

Divorce from Bed and Board suspends the marriage contract in anticipation of an absolute divorce but it does not actually dissolve the marriage bond. It allows the parties to cease cohabitation, but a Divorce from Bed and Board also causes the party at fault to lose certain marital benefits, including but not necessarily limited to: all rights of intestate succession in the estate of the non-fault spouse; any claims or rights the spouse at fault might have had to succeed in the real property of the non-fault spouse; the right to petition for an elective share of the estate of the non-fault spouse; all rights to a year’s allowance in the personal property of the non-fault spouse; the right to administer the estate of the other spouse; and the loss of any and all rights in the property of the non-fault spouse “which by a settlement before or after marriage were settled upon” the spouse at fault in consideration of the marriage.

I’ll give it to you if you say I am a good person

“A lawyer is never entirely comfortable with a friendly divorce, anymore than a good mortician wants to finish his job and then have the patient sit up on the table.”
—Jean Kerr

Defendants sometimes consent to various orders being entered to avoid going to trial on a claim for divorce from bed and board. Generally, clients (and attorneys) do this because the Plaintiff-Spouse drafts and offers a consent judgment on their other issues that removes the more spurious allegations of fault; not wanting to be embarrassed or concerned over the damage that could be caused to their reputation, the Defendant signs the consent order in return for the Plaintiff’s voluntary dismissal of their claim for Divorce from Bed and Board. Several instances where consent orders on the issue of Divorce from Bed and Board have been entered without specific findings of fault have occurred; legally, this is a void order which can cause numerous complications. No one can consent to a Divorce from Bed and Board unless they also admit to the fault giving proper grounds for the court to find a divorce from bed and board applicable.

Establishing fault in alimony

“Ah, yes, divorce… from the Latin word meaning to rip out a man’s genitals through his wallet.”
—Robin Williams

Alimony is court ordered support for a dependant spouse. In order to be eligible for alimony a spouse must first prove they are dependant on the other spouse for support. After the spouses’ roles are defined as supporting and dependant spouses, a judge will determine an amount of support suitable to maintain the dependant spouse at their standard of living during the marriage. When marital misconduct is proven by a spouse, alimony may be diminished or required. If the dependant spouse is the only spouse to proven to commit preseparation marital misconduct, the court may disallow alimony. However, if the supporting spouse is at fault, the court must award some amount of alimony to the dependant spouse. Preseparation marital misconduct by both in essence returns discretion back to the judge. An order entered in an action for Divorce from Bed and Board finding marital misconduct can be used by either spouse against the other spouse in a subsequent alimony action under the doctrine of collateral estoppel.

Establishing the date of separation

“I’m an excellent housekeeper. Every time I get a divorce, I keep the house.”
—Zsa Zsa Gabor

Equitable distribution is the division, and dispersion between the spouses, of marital property by the court. First, all the property owned by the spouses is identified. Second, the property is classified as marital, separate, divisible, etc. Third, the property is valued. Lastly, the marital property is divided among the now separated spouses. Because marital property is defined as “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property;” the date of separation becomes extremely important for the spouses in determining what the court may divide. Much like alimony, an order in an action for Divorce from Bed and Board can establish the date of separation. Property after the Divorce from Bed and Board acquired by either party will be generally deemed separate property of the spouse that acquired it. If the actual date of separation is earlier than that determined in the Divorce from Bed and Board action, many assets that should be classified as marital could end up in the other spouse’s hands as separate property.

Extinguishing intestate and probate rights

“Is there a cure for a broken heart? Only time can heal your broken heart, just as time can heal his broken arms and legs”
—Miss Piggy

The spouse guilty of fault is barred from taking at the other spouse’s death; however, nothing in the law seems to prevent the non-guilty spouse from taking in the event of the death of the guilty spouse. The spouse at fault may believe that because they cannot take at the other spouses’ death, the other spouse cannot take at their death—this is not the case and at the very least, the spouse found to have committed marital fault in the Divorce from Bed and Board action would be wise to execute a new will and estate plan. This is especially important during the year of separation required before an absolute divorce can be filed.

Considerable effect on real property rights

“She cried, and the judge wiped her tears with my checkbook.”
—Tommy Manville (married 13 times, to 11 women)

Another such right that may be lost to a spouse who is found guilty of marital fault in an action for divorce from bed and board is the long-held prohibition against property held as tenants in the entirety by the spouses being conveyed without the joinder of the spouses (without a Divorce from Bed and Board, both husband and wife have to sign a deed conveying the property). The spouse at fault may get a judgment against the other spouse for those proceeds received from the sale of the marital home without their joinder under a claim in quantum meruit or other action; however, the reality is that may be a day late and a dollar short. Even though it would be legally wrong, nothing is actually preventing the other spouse from spending or hiding that money before it can be attached (if it even can be) or protected against waste, and the cost of further litigation will undoubtedly diminish any actual recovery one may enjoy through a judgment. In other words, by the time the spouse can recover, there might not be anything to recover. Litigation over the proceeds of the sale without joinder of the other spouse could lead to spending the money on legal fees and resulting in no res to collect damages from or the cost of litigation may reduce the net realization of the monies to such a degree that no monetary benefit is had by either party. Further, the spouse who was at fault in the Divorce from Bed and Board action will be going into court seeking restitution from a person the court might perceive as an innocent.

Conclusion

“You don’t know a women till you’ve met her in court.”
—Norman Mailer

Divorce from Bed and Board is not just a judicial separation. It is a potentially damaging set of allegations that causes many Defendants to consent to giving up that which they should not to avoid those allegations from becoming public. However, there are many other potential consequences to a divorce from bed and board that every defendant should be aware of, including: 1) establishing an alimony claim; 2) extinguishing intestate and probate rights of the party found to be at fault in the estate of the non-fault party; 3) effecting the real property rights of the parties; and 4) establishing the date of separation.

Author’s Note: The purpose of this article is to impress on the non-lawyer who may read it, the importance of considering all aspects and consequences of a Divorce from Bed and Board and to outline generally some commonly unknown consequences of such for those attorneys who may be unaware of them. The reader interested in learning more should contact their attorney. This article does not address defenses to Divorce from Bed and Board, which will be the subject of a later article.