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Divorce from Bed and Board: Defenses and Effects

In an earlier post, we introduced the legal action known as Divorce from Bed and Board. You will want to read that post before you read this entry.

While this action is created from statute, there are four recognized common law defenses that the accused spouse can offer to defeat or negate a claim for Divorce from Bed and Board. They are:

  •  Collusion: Rarely seen in North Carolina, collusion might exist where two spouses plotted to mislead the Court as to the existence of grounds for Divorce from Bed and Board.
  •  Connivance: When offering connivance as a defense, the accused spouse must demonstrate to the Court that but for the injured spouse’s actions or behaviors, there would not be grounds. Simply put, connivance can be evidenced when the injured spouse intentionally causes or brings about the very misconduct that creates the ground for Divorce from Bed and Board.
  •  Condonation: When offered as a defense, the accused spouse must demonstrate that the injured spouse actually knew of the marital misconduct and forgave it. The requisite forgiveness can be either implicit or explicit. Where an injured spouse is alleged to have forgiven the accused spouse, it is important to note that the law presumes that any forgiveness is conditional. That is, if the injured spouse has forgiven marital misconduct, the law presumes that the forgiveness applies only to that one instance and that any future misconduct of the same nature would not be covered by the forgiveness.
  •  Recrimination: In an example of “turnabout is fair play”, a recrimination defense requires the accused spouse to allege one or more of the six grounds for Divorce from Bed and Board against the injured spouse. This defense can be raised even if the accused spouse does not want the court to order a separation.

Now that we have spelled out the elements of a Divorce from Bed and Board action as well as the potential defenses to it, let’s talk a little about the impact or effect that a decree of Divorce from Bed and Board might have.

First and foremost, it is important to recall that a Divorce from Bed and Board is NOT a traditional divorce in the sense that your marital bonds are not severed by this action. Instead, a Divorce from Bed and Board acts more like a formal separation between two married persons. Thus, neither spouse can go out can get remarried following a Divorce from Bed and Board.

Second, a Divorce from Bed and Board is not limited solely to forcing an eviction or ejectment of a spouse. In fact, a claim for Divorce from Bed and Board can include claims for alimony, child custody and/or child support. This can be a wide-ranging and deeply impactful action thus, it demands your full attention and skilled legal advice should a claim be brought against you.

There is a significant list of other legal rights that can be forfeited or adversely affected by a successful claim. They include:

  • Loss of the right to live with the other spouse (i.e., cohabitation) regardless of which spouse owns the property.
  • Loss of the rights normally afforded a spouse under the laws of intestate succession.
  • Loss of a defense to post-separation support/alimony where marital misconduct has been proven.
  • Loss of the right to pass marital property through an estate.
  • Loss of presumption of legitimacy for children born of the marriage but who were conceived after the decree of Divorce from Bed and Board.

In North Carolina it is the District Court that maintains jurisdiction over Divorce from Bed and Board claims. Further, injured spouses have the statutory right to seek a jury trial in these matters.

If you have additional questions about Divorce from Bed and Board or Separation and Divorce, in general, please give us a call.

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