Co-Counsel Bulletins

DIVORCE FROM BED AND BOARD

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A.  TWO KINDS OF DIVORCE. 
In reality, two kinds of divorces are available in North Carolina.  The most common of these is absolute divorce.  It is usually based on separation, not fault.  Its primary characteristic is that it entitles the parties to remarry because it completely severs and destroys the bonds of matrimony.

            The other kind of divorce is called "divorce from bed and board."  Its operative effect is to suspend most of the rights and duties of marriage, rather than destroying the bonds of matrimony.  A plaintiff to whom a divorce from bed and board (DBB) is granted is not "single again" and eligible to remarry.

B.  WHY A "DIVORCE FROM BED AND BOARD"? 
In the civilian world there are few occasions when filing an action for DBB alone will serve any useful purpose.  In the military community, however, due to the adverse consequences flowing from "nonsupport complaints, "a key reason for filing from DBB is to obtain a release from spousal support rights.  When there are no children, a nonsupport complaint is based solely on the right of a spouse to support.  This right arises out of the martial relationship and is based on common law.  In order to suspend this marital right of support, it is sometimes necessary to file a suit for DBB.  When this is granted to the soldier (without a pending claim for or prior award of alimony or postseparation support to the wife), its effect is to relieve him of the duty of spousal support.  The judgment for DBB is usually silent on this issue.  It basically recites that the plaintiff is granted a divorce from bed and board from the defendant.  It does not recite the consequences or effects of divorce from bed and board, just as a judgment of absolute divorce does not recite the legal effects of absolute divorce.  Regardless of its silence on the issues, however, the effect of a judgment of DBB is to suspend the duty of spousal support between the parties, among other things.

            Another reason for filing for DBB alone is to obtain the court's sanction for a party's leaving the marital household.  In the absence of a divorce from bed and board, such departure could well be considered abandonment.  Since cohabitation is one of the rights and duties of marriage, the effect of a divorce from bed and board is to suspend this incident of the marital relationship. 

C.  AN EXAMPLE. 
Suppose Sergeant Smith doesn't believe that he can continue living in the marital residence.  He tells you that the marriage relationship has substantially deteriorated, that he and his wife cannot talk to each other, eat together or communicate in any way.  He is afraid that the couple will come to blows over some trivial dispute if he continues to reside at the marital home.  Under these circumstances, Sergeant Smith's leaving the marital home would probably be used by Mrs. Smith in her case against him, and she would claim that he had abandoned her.  In order to "justify" or give legal sanction to Sergeant Smith's departure, he might well consider filing an action against Mrs. Smith for divorce from bed and board.

            In such an action, he would have to charge Mrs. Smith with one or more of the fault grounds set out in the statutes that allegedly make his living with her impossible.  Examples of such grounds are adultery, personal indignities, cruel and barbarous treatment so as to endanger life, etc.  For a complete listing of these grounds, see NCGS 50-7.  If the court were to grant a DBB to Sergeant Smith in his action against Mrs. Smith, then the Sergeant would be free to depart from the marital residence without this being considered abandonment.

D.  ABANDONMENT. 
Please note that the term "abandonment" has a definite and specific meaning in North Carolina.  It is essential to counsel clients about the specific four tests used in proving abandonment in court.  The law in North Carolina is that abandonment consists of four elements:

  • "Departure from the marital residence."  This is seldom if ever, contested in a true case of actual abandonment.

  • "Without the intent to return."  This means a permanent departure.  It is not a temporary separation, such as one due to military orders.

  • "Without the consent of the other spouse."  This means that the aggrieved spouse--the alimony claimant--has not by words or actions consented to the departure of the defendant. 

  • "Without legal justification or excuse."  This means that the defendant left without a good reason.  What is a good reason?  The law does not specifically define how substantial the excuse or provocation must be in order to justify departure from the marital residence.  The cases generally say that it is permissible to leave if one cannot continue to cohabit without danger to his mental or physical health, safety or well‑being.  What this translates into in practice is another matter.  Suffice it to say that the cause for departure should be a significant or substantial one, not a trivial or insignificant reason. 

"Constructive abandonment" is sometimes pleaded as a form of "abandonment" when alleging grounds for alimony.  Constructive abandonment is the same as the abandonment just described except that the first element, instead of being "departure from the marital residence," would be "departure from the marriage."  Thus a party who, by his words or actions, evidences an intent to depart from the marriage, leaving it an empty shell, can be said to have constructively abandoned the other spouse.  Constructive abandonment does not require actual departure.  A classic example of constructive abandonment is the "workaholic" spouse, one is almost always absent at work (or at play).

            Probably the most common defense to abandonment is the alleged existence of legally sufficient justification or excuse.  A spouse is "justified" in leaving the marital residence if he cannot stay there without danger to his mental or physical health, safety or well‑being.  Another less frequent defense to abandonment is that the opposing party consented to the departure.

E.  PERSONAL INDIGNITIES. 
Personal indignities is another ground for alimony.  This ground is what the soap operas call "mental cruelty."  The full title is "such indignities to the person as to render one's life burdensome and condition intolerable."  It consists of a course of conduct or a pattern of behavior, not a single incident. 

            Because of the nature of this fault, it is extremely hard to pin down or identify.  It is whatever conduct makes a spouse's life burdensome and condition intolerable.  Such allegations must be alleged with specificity in order to give reasonable advance notice to the accused spouse.  The specific conduct that will give rise to such an allegation will, of course, vary with circumstances and with the character of the spouse who brings the accusation.  The conduct that is complained of must be unjustified and without provocation.  The court will, among other things, consider the character, upbringing, sensitivities and refinement of the spouse who brings the indignities claim in evaluating whether it indeed made her life burdensome and intolerable. 

F.  INHERITANCES AND PROPERTY REASONS. 
Another reason for seeking a divorce from bed and board is to suspend certain marital rights that have to do with the death of a spouse.  Upon the death of Sergeant Smith, for example, Mrs. Smith would have the right to act as his administrator if he were to die without a will.  In addition, his death without a will would leave certain specified intestate inheritance rights for Mrs. Smith as his widow.  Even if he died with a will, she would have the right to claim against the will for her intestate share (up to 50%) of his estate.  A divorce from bed and board suspends these spousal estate rights from the injured party so that the party at fault cannot inherit from her.  Interestingly, the injured party is still entitled to all of these inheritance and estate rights from the party at fault after the granting of a divorce from bed and board.

            A divorce from bed and board is also helpful in the case where there is a problem with spousal real property rights.  These property rights are known at common law as dower (for the wife) and curtesy (for the husband).  Since at common law the surviving spouse had a one-third life estate in the real property owned by the deceased spouse at the time of his death, this means that the husband, for example, will have a problem in transferring by deed a piece of land held separately in his name if his wife will not join in the transfer.  Although his name only is on the deed, his wife should also sign the deed in order to accomplish a full transfer, including her contingent dower rights in the land. 

            The husband can, of course, wait until a judgment of absolute divorce if the sale is not imminent.  He may also bargain with the wife in order to obtain her signature on a marital rights release or on a separation agreement, which would also have the effect of releasing her dower rights.  And he can also ask the title insurance company to cover this contingency -- that he will survive until the divorce -- when it issues title insurance.  When none of these courses is possible, he will need to sue her for a divorce from bed and board.  The granting of a divorce from bed and board to the husband suspends her marital right of dower, allowing the sale of the real property without her signature.

G.  PROCEDURAL ISSUES. 
A divorce from bed and board may be granted by the court sitting alone without a jury.  On the other hand, if either of the parties makes a timely jury demand, then a jury will be empaneled in the district court to hear the evidence and render a verdict as to the grounds alleged for divorce from bed and board.  When the husband initiates the suit for divorce from bed and board, it is commonplace for the defendant‑wife to counterclaim on her own for a divorce from bed and board to be granted to her, in addition to postseparation support and alimony.           

[rev. 3/17/00]

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