News

What can I expect from mediation?

One of the first questions we get, whether by phone, email or in-person, is how does mediation work? The problem is that there really isn’t a pat answer for that question. The mediation process and experience are as unique as the people in the settlement conference, the situation they are discussing as well as the training and expertise of the mediator her/himself.

That, however, is the sheer beauty behind mediation.

Let’s talk for a minute about the variables that are at play in virtually any mediated settlement conference. First, there is the physical environment of the mediation. Oft overlooked as a critical dynamic, we believe that the physical space can significantly impact the experience and the outcome. Determined not to make that same mistake, we chose the office that we are in is because it was built as a residential condo, a home. As you enter our center, there are two conference rooms just off the main foyer. Each has a color theme (one maroon, one green) and each is decorated more as a den in your home rather than a law office. All of our conference rooms are equipped with large monitors, flip charts and whiteboards. These tools give us the ability to capture key elements of the discussion as well as to look at factual information, such as a spreadsheet, at the same time and without eye strain.

Every one of our conference rooms also has a large bowl of snacks and goodies. Hey, mediation is hard work! And, don’t be surprised if you are in the office and smell fresh cookies baking.

As you make your way through the foyer, you’ll then encounter the large, open kitchen in the middle of the office with its inviting and warm center island and chairs. This is the hub of the experience and from the feedback we have received from our clients, the kitchen does wonders to reduce stress and deformalize the experience.  Whether from the Keurig beverage maker or the fridge, there are a variety of complimentary hot and cold beverages available.

Pass through the kitchen and dining room which we use as our reception area and you’ll enter the largest of our conference rooms. Enclosed by French doors with plantation shutters and with its own doors to an outside patio, this is not your father’s conference room! Again, our goal is to create a sensory experience that will ease tensions, inspire creativity and facilitate good communications between the parties.

Oh yeah, no matter where you are in the office, you’ll be surrounded by images of Boone and North Carolina. Instead of filling the walls with the standard fare of generic artwork, awards, certificates and other icons of platitude we wanted to give the space a local feel.  In fact, there are more than 60 local pictures displayed throughout the office. Can you identify what or where they are? And, for those who like a little challenge, each public space has a hidden image of our logo. Can you find it?

If client testimony is a fair measure, we’ve accomplished what we set out to do in terms of creating a space that was warm, welcoming, comfortable, safe and still, professional.  In the next blog, I’ll talk about some of the human dynamics that play a role in mediation. Until then, all the best.

The Power and Beauty of Interest-based Negotiations.

The collaborative approach is based on the key concept of interest-based negotiation (IBN). Simply put, interest-based negotiations are focused on identifying and, to the extent possible, satisfying the deep, often underlying personal need or interest of the individual as opposed to attempting to satisfy the usually insatiable “position” that a person in conflict has assumed.

For example, imagine a scenario where a divorcing wife assumes the position that the marital home must be sold as a part of the settlement agreement. She is adamant and unyielding in her position. We could assume a whole host of reasons why she demands that the house be sold but good agreements are rarely based on assumptions or position. The best agreements are the result of identifying and, as closely as is possible, meeting the interests of the respective spouses.

In this example, through the collaborative process, we determine that she wants the house sold because there is a home for sale that she would like to buy that’s close to her ailing parents for whom she is the primary caretaker. If the marital home is sold, she will have sufficient cash flow to make the purchase and avoid the 30-mile, each way, daily trip that she must make to check in on them.

Her “position” was “the house must be sold” but her real interest was to be able to afford to move closer to her parents. These are two very different dynamics.

In the problem-solving or option-invention step of the collaborative process, we would have been quickly stifled if we were focused on selling the house, now!  Likely options might have included drastically lowering the price and taking a loss or investing more money to update some features. While these steps may have facilitated the sale of the house, the question that likely never would have been answered is, at what cost?

In contrast, imagine the world of possibilities once we learned that the real interest was to be able to afford to move closer to mom and dad and to avoid a lengthy and costly commute. Perhaps the property distribution could be modified to move more liquid assets from the marital estate to the wife so she could make the move. What about exploring third-party rental of the marital home to create sufficient cash flow. Or, maybe the terms of the property settlement could be timed in a way that would facilitate the move now and remove the risk of losing the new home. The pool of possibilities is infinitely larger now that we understand what the wife truly needs.

Unfortunately, interest-based negotiation is not generally practiced in the more traditional, adversarial courtroom focused approach to marital dissolution. In fact, the very existence of an adversarial dynamic means that there is generally a great deal of positioning and posturing taking place.

Consider your situation and explore your “position” versus your “interest(s)”.  If you are facing conflict of any sort, this exercise can lead to the optimal outcome for you.

“But the law says I am entitled to…”

Invariably, whether in a mediation or collaborative conference, one of the folks involved will make this statement. While mediators and attorneys are used to hearing it, that statement can portend the beginning of the end of the process. But why, you may ask?

First, it is important to note that one of the factors that is always at play in a negotiation conference is statutory and/or case law.  The internet has made access to legal precedent easy. Today, clients of all types often come to the negotiation armed with some sense of what the law says on the issue, whether they have been counseled by a competent attorney or not.  I say “armed” because, unfortunately, the information becomes tantamount to a weapon in a battle. It is strategically held and deployed when it is likely to have its greatest bombastic effect.

Second, if the nature of the conversation is such that there is both the opportunity and an apparent ability to make such a statement, there are much larger issues at hand. Do the parties truly understand and embrace the pledge that underlies these types of negotiations? Is the conversation being guided by interest-based negotiation principles or are we stuck in “position”? Is one party feeling a power imbalance and reacting in defensiveness?

While the law is always one of the potential grounding points for a negotiated conference, there are many other considerations that a participant should factor when determining whether a proposed resolution is just, reasonable and livable.

Mediation and Collaborative Law allow for, in fact are built on, the principle that one-size need not fit all. What you are entitled to and what you might want or need from a resolution can be very different.

Inventing options and seeking full-color resolutions that offer mutual gain are what make Mediation and Collaborative processes so much more desirable than the traditional, adversarial courtroom focused approach to dispute resolution. Don’t box yourself in.

Successful Mediation Tips

When you are getting ready for your first mediation conversation, chances are that your mediator will share with you some tips and/or rules of the road to guide the conversation. The number of tips and the emphasis placed on each may vary from mediator to mediator but here are some of the critical considerations and commitments that we ask of our mediation clients.

  • Enter into the mediation process in good faith and with the belief that a satisfactory resolution for the dispute is possible.

One of the reasons we offer a free mediation orientation is that we want the opportunity to interview potential clients as much as they are interviewing us. We have learned that unless there is a genuine good faith belief in the process and that there is a possible resolution, the mediations tend to stall out.

  • Understand that the best possible solution for the dispute lies within you and the other party.

This is a critical tip. In an earlier post to this blog I talked about the danger of coming to mediation set on what you are entitled to under the law. It goes without saying that remedies set out by law can be one possible path to resolution but the law’s remedies may not be optimal given your unique circumstances.

In mediation, our emphasis will be on identifying the respective interests of the affected parties. This can lead to a process of creative problem-solving that generally far exceeds the scope of traditional legal remedies. Remember that the law is based on one of two principles, serving the greater good or a very narrow and specific set of facts from a given situation. It is likely that what is just and fair for the community at large, may not satisfy your interests. And, unless your fact pattern is closely aligned with that of precedent case law, your resolution might come from uncharted territory.

  • Be willing to engage in the mediation process in a spirit of compromise and negotiation.

If you are entering mediation with a checklist of unyielding wants and needs then mediation will not work. Each person in a mediation discussion needs to listen and hear what the other person is saying and, likewise, has to be able to clearly communicate what it is that they hope the resolution will address.

One of the beauties of mediation is that it can represent your last, best chance to reach resolution that you control. Being inflexible can result in the resolution being imposed upon you by a dis-interested third party such as a judge.

  • Provide full and accurate information during the mediation process so that both parties are able to make informed decisions.

If you are participating in mediation because you think its relative informality and the lack of a judge will make it easier to hide information, you are wrong. In the Pledge to Mediate as well as any settlement agreement arising out of the process, you will be asked to sign your name indicating that have not withheld information, misrepresented information, etc. There are legal consequences if you are later found to have been anything but up front, complete and honest.

  • Focus on the freedom of the “after” instead of being a victim of the “past”.

If all you want out of mediation is to re-hash history, you won’t very much enjoy the experience. Instead, the best outcomes are possible when the parties consider what life would be like after a resolution and how it can springboard them to a new place in mindset and life.

The bottom line is that Mediation is a process that is unique to you and your situation. It thrives on creativity and open communications and is unbounded by tradition or history in terms of the range of resolution options. If you observe these fives tips, your mediation experience should be one that is rewarding and life-altering

What is “WATNA/BATNA”?

As in many other professions, mediation has succumbed to the use of acronyms to abbreviate theory titles and practice tools. That said what these two acronyms stand for can be very important to the parties involved in a mediated settlement conference.

“BATNA” – Best alternative to a negotiated agreement.

“WATNA” – Worst alternative to a negotiated agreement.

In its simplest form, parties involved in a dispute are taken through an exercise to consider their best and worst alternatives that do notrequire agreement from the other person. In addition to identifying a range of alternatives, the analysis should assign some probability of occurrence to each alternative. Each party to a dispute will have a unique “BATNA” and “WATNA” based on a variety of factors including legal precedent and interests.

In practice, the “BATNA” can be helpful when evaluating a potential settlement. While it is generally accepted that the better the “BATNA” the better the bargaining position, this can be a flawed theory. For example, in the absence of a mediated settlement, the parties may end up in a court of law. While he/she may ultimately prevail, the evaluation should consider the additional costs in time, money and emotional toll as well as the potential risk to the relationship between the parties.

The “WATNA” can be useful in evaluating whether to walk away from an agreement. If the “WATNA” is better than the current proposed resolution, a party may be inclined to take the risk and walk away from the mediated settlement conference. This despite the fact that the “WATNA” is not desirable.

In mediation, the “BATNA/WATNA” exercise can be helpful in restoring momentum in an otherwise stalemated discussion. By taking the time to thoughtfully consider their interests and how or whether they would be served by a “BATNA/WATNA”, the parties very often become better negotiators.

Let’s look at an example of a “BATNA/WANTA” analysis using a real-life scenario. Assume that you recently purchased a home and, after moving in, discover that the home is infested by termites. You believe that the Seller had some degree of knowledge and, therefore, made a potential material misrepresentation in the contract for purchase.

You are the new homeowner (Plaintiff). Before you file a lawsuit you want to attempt to reach a resolution in mediation. During the mediated conference, you develop the following “BATNA/WATNA”:

BATNA

  • 70% probability of proving that the Seller was aware of the termites and that they are liable for the cost of remediation ($30,000).
  • To take this case to court will cost an estimated $10,000.
  • Thus, there is a 70% probability of netting $20,000 IF no mediated agreement is reached.

WATNA

  • 30% probability of proving no liability by Seller. Thus, no recovery.
  • To take this case to court will cost an estimated $10,000.
  • Thus, there is a 30% chance of spending $10,000 with no recovery.

Let’s consider the “BATNA/WATNA” now in terms of a proposed settlement by the Seller. If they offer $15,000 to settle the matter by mediated agreement, would you accept? Here’s how your analysis might go:

  • 100% probability of receiving $15,000 today
  • 70% probability of netting $20,000
  • 30% probability of losing $10,000

Regardless of your answer, going through the exercise will better prepare you to evaluate resolution alternatives and negotiate more effectively.

Free Orientation vs. Free Consultation

Recently, we’ve evolved our thinking on the type of introductory experience we wish potential clients to have. Previously, we touted the fact that we offered a free initial consultation. Why free? Well, conflicts can be complex and scary. Many people who find themselves in a serious conflict haven’t had the experience before. They may have been served notice of a pending lawsuit or the other party may be threatening to hire an attorney and sue. Part of our role is to help demystify the court system. No one should be afraid of a system that was created for the benefit of everyone.

Another part of our rationale was that we believe that giving legal advice over the phone is not a wise practice. There are just too many variables and, thus, too many risks. Without having the opportunity to sit face-to-face and talk about the specifics of your conflict, and yes that involves us asking some very direct questions, there is a chance that some important factor might be overlooked.

The larger motivation for our “free” offer was self-serving – mediation and collaborative law are not for everyone. By offering a “free” initial consultation, our mediators/participating attorneys have the ability to interview potential clients as much as you are interviewing us. We readily disclose that the initial meeting is an opportunity for all of us to get a handle on the situation, explore options for resolution and, most importantly, establish the requisite comfort and trust level from which to build a strong experience for all.

The problem with offering a free consultation, however, is that it might create a false expectation for our first meeting. Yes, we want to hear about your conflict and yes, we want to be able to offer relative advice and counsel as to options for resolution. Because there are no guarantees that we can help or that you will want to use our services, the lack of cost makes this a risk-free experience for potential clients.

But, we cannot usually solve your conflict in that initial conversation.

Our thinking and approach are evolving. Now, we offer a free initial orientation. What’s the difference? Let’s start with what hasn’t changed. First, the initial meeting is still risk-free for the potential client. We still want to understand the basics of your conflict and we still want for you to have the chance to interview us.

The difference is that the focus will be much more on the processes we use to achieve resolution so that you’ll be fully aware of your options. Most people understand the traditional adversarial, courtroom focused approach to conflict resolution. And, while many people have heard of mediation, not many have actually experienced it. As for Collaborative Law, an even smaller number of people have heard of this approach and fewer still have experienced it. As a result, so that you can make an informed decision, we believe it is critical for us to explain the wide range of processes, approaches and tools available to help you achieve resolution.

We hope that this shift in focus will help our potential clients to more fully recognize the many benefits of alternative dispute resolution. Thanks for reading.

Collaborative Law…is it for you?

As many of these postings have suggested, the Collaborative Law approach is not for everyone. Where there has been domestic violence and/or child or elder abuse, the traditional court system is the best route. Further, where one or both spouse’s do not intend to participate in good faith or to make full disclosures, the Collaborative approach will become quickly stymied.

Fortunately, experience indicates that these exceptions are rare and that the majority of separations and divorces could be achieved through collaboration.

As you contemplate whether Collaborative Law is right for you, here are some factors that should be weighed:

  • Do you AND your spouse desire to protect your kids and family from the indignities and costs that can be a by-product of the traditional, adversarial courtroom focused approach?
  • Do you AND your spouse place importance on the civility of your relationship after the change in marital status?
  • Do you AND your spouse desire to be personally engaged in and responsible for the final agreement?
  • Are you AND your spouse willing to accept responsibility for how the marriage failed without becoming defensive or using this candor as a weapon against the other?
  • Do you AND your spouse trust that each will fully cooperate and provide complete and accurate information to the other?
  • Are you AND your spouse prepared to move away from positions and focus, instead, on interests?

If you answered “yes” to all or most of these questions then you may be a candidate for Collaborative Law. But how, you might ask, does Collaborative Law work?

Every couple represents a unique approach under the collaborative framework. As a result, there really is no one experience that you can expect. That’s one of the benefits of this approach; there are no cookie-cutters. That said, there is a consistent general framework that starts with the orientation.

The orientation is, as its name implies, the first meeting between the couple and at least one collaborative attorney. The purpose of this discussion is to explain the process, set expectations, answer questions and make a determination of whether Collaborative is right for you.

Assuming that it is, the next step is for each spouse to hire an attorney who is willing and able to handle the case in a collaborative approach.

Once each party has a collaborative attorney, there is generally a meeting between spouse and attorney to talk about specific needs, interests and concerns.

Thereafter, the spouses and their respective attorneys meet in four-way conferences in an effort to a) identify independent and mutually shared interests and concerns, b) problem-solve and ideate and c) achieve a just and mutually acceptable resolution. These four-way meetings are just as the name suggests; all four parties are in the same room, at the same time, openly discussing and working through each issue. Recall that a tenet of the collaborative approach is that the best way for me, as attorney to a spouse, to get what they need is for me to understand what it is that the other spouse needs. Thus, there is a great deal of dialogue between all four parties such that, at some times, an outside observer might not be able to tell who is representing whom.

In the Collaborative approach, all relevant and timely topics must be discussed. While the traditional matters of parenting, custody, support and property division are preeminent, there can be a wide range of other topics that are explored. For example, the custody and care of a family pet or the plan for how wedding costs will be shared in the event there are children.

In addition to the assistance of legal counsel, the collaborative approach also allows for the participation of other professionals who may play an instrumental role in achieving resolution. These additional professionals can include CPA’s, Psychiatrists, Therapists and/or Financial Planners.

In North Carolina, no divorce is final unless or until a judge has issued a divorce decree. Thus, once an agreement is reached and the one-year living separate and apart requirement is met, one of the spouses will need to file a court action for nothing more than to order the divorce. Either spouse can generally file.

The attorneys will make sure that the proper documents are timely filed and that each party has sufficient notice. Once the divorce decree is signed by a judge, the agreement stands either as an independent contract as between the spouses or, in the alternative, as a component of the actual divorce order.

When a settlement is reached, attorneys file the appropriate paperwork required by the court.

When “winning” is really “losing”.

I have heard fellow attorneys suggest that because I practice in a non-adversarial manner that I am less of a lawyer. Their flawed argument is that only through adversity can there be a winner and a loser and by striving to be the winner, you are more likely to be a zealous advocate for your client. Really?! I beg to differ and here’s why.

  • Divorce is not  the goal. Sure, in its purest sense, what spouses who can no longer be married want is a divorce (i.e., a legal termination of their marital relationship). But, I’d suggest that what they really want is the optimal winding down of one stage of life AND the best foundation for starting the next part of their life.

Unfortunately, the traditional separation and divorce model has little regard for the latter and generally turns the former into an unneeded, unproductive and costly war.

Mediation and collaboration focus on the process and experience of marriage breakup and life afterwards. You still need the Court to grant the final divorce decree to establish the legal end of your marriage but that is the only commonality between the two approaches.

  • Marriage is complex. The traditional approach to divorce treats the marriage as a legal entity primarily. If it was only so simple. Yes, there are volumes of statutes and case law that address the legal entity, how it is created and terminated. But marriage is also a complex nexus of emotional, physical and business issues that defy cookie-cutter solutions.

The traditional adversarial approach to separation and divorce infuses a complicating layer of heightened and raw emotions that only further confuse and entangle the issues that need to be resolved. At a time when clarity and good dialogue are paramount, the process pits the spouses against each other.

Mediation and collaboration are designed to segment and clarify the issues that need to be resolved then to empower the spouses to seek the best solution through open and honest communication and creative problem solving.

  • Financial stability is critical. Lawsuits are expensive. Consider that in many cases today, there isn’t sufficient cash flow to support one household, never mind two. The traditional, adversarial approach to separation and divorce puts a severe strain on cash flow, no matter what the economic situation of the family is. And, with court filing fees increasing substantially, the financial burden grows even more intense.

If the real goal is to prepare the family or spouses for a new lifestyle after the legal divorce, wouldn’t it be best that there be as much financial means as is possible to support two lifestyles?

Mediation and collaboration have costs but they are generally far less than those of the traditional approach. Further, in mediation, the parties can help to control the costs by doing homework and coming to settlement conferences fully prepared and engaged. This expedites the resolution and saves not only money but time and emotional drain too.

  • Collateral damage can and should be mitigated, not exploited. The traditional route to divorce focuses on the spouses and rarely takes in to consideration the impact of the divorce on children, extended family and other loved ones. In fact, all too often these individuals become unwilling pawns in and victims of the ensuing war. That’s not humane.

Our approach takes in to consideration these important peripheral parties who are impacted by the breakup of a marriage. In collaboration, we can draw on other experts in mental health, social work and other disciplines to help mitigate the impact leading to a healthier outcome for all.

  • Interests are important, not positions. In a separation and divorce what is most important is what each spouse needs in order to move on to the next part of their life. Unfortunately, the traditional approach de-emphasizes interests and puts too much importance on the position of each party. In the adversarial process, that sets up the winner/loser scenario. The fact is, however, that it really just creates two losers.

We’ve already talked about the fact that marriage is a complicated relationship and, as such, it brings with it lots of emotions ranging from fear to anger to despair. Out of these emotions, each spouse assumes a bargaining position that is fueled by their emotional state and which usually clouds their ability to make rational decisions.

In mediation and collaboration we’ll deal with positions by working to identify the real, core interests of each spouse and ensuring that the focus is on meeting those interests. That’s not to say that there is no room for emotions at the table, there is plenty. It’s just that instead of using emotions to create artificial positions, we continually return to the underlying interests and help to balance the emotional roller coaster.

The traditional, adversarial approach to divorce generally will result in a winner and loser but does anyone really win? We think not.

Divorce a mensa et thoro?

A mensa et thoro is a Latin phrase which means “from table and bed”, although it is often translated as “from bed and board”. Separation a mensa et thoro is essentially a separation that is sanctioned by a court order, meaning that the spouses may legally live apart, but they are still legally married.

In North Carolina, a divorce from bed and board is a fault-based legal action that has as its practical result, a legal separation between two parties. This type of Divorce action is created in section 50-7 of the North Carolina General Statutes.  A Divorce from Bed and Board does not sever the marital bonds so, in the traditional understanding of the word, it is not really a divorce.

You’ll recall that North Carolina is a no-fault jurisdiction in terms of dissolution of a marriage. That simply means that in NC, to have a Court enter an order of Absolute Divorce, the parties need not allege or show that there was fault (e.g., adultery). Instead, the only requirements under N.C.G.S. section 50-6 are that the parties have lived separate and apart for one year with the intent not to live as man and wife and one of the parties has resided in North Carolina for six months.

But if N.C. has only one form of Divorce then why do we have Divorce from Bed and Board?

Divorce from Bed and Board is a legal mechanism that can be used to affect a desired result. For example, Wife wants a divorce and wishes for Husband to move out of the marital residence so that the tolling of the one year required for Absolute Divorce may begin. Husband refuses to move out and, further, refuses to take part in any negotiations related to the development of a separation agreement. Assuming the existence of sufficient grounds (see below), Wife could seek a Divorce from Bed and Board as a way to 1) get Husband out of the house and 2) either compel Husband to participate in Separation Agreement discussions or petition the court for alimony, child support, child custody, etc.

Under N.C.G.S. 50-7, a spouse, the injured spouse, begins the process by filing an action for a Divorce from Bed and Board in court. The injured or complaining spouse must demonstrate, by the greater weight of the evidence, that he or she has been injured by the actions of the other, accused, spouse. There are six recognized grounds under this statute that can be alleged to support the claim. While the actions of the accused spouse may fall into more than one of the six grounds, it only takes a successful finding on one ground to satisfy the statute.

The six grounds are:

  • Either party abandons his or her family.
  • Either party maliciously turns the other out of doors.
  • The actions of a party are found to be cruel or barbarous as against the other party such that the treatment endangers the life of the other.
  • Either party offers such indignities to the person as to render his or her condition intolerable and life burdensome.
  • Either party becomes an excessive user of drugs or alcohol.
  • Either party commits adultery.
  •  Abandonment: For most people, abandonment means some sort of physical departure. While leaving the marital residence can, if with the requisite intent, satisfy this requirement it is not necessary. The institution of marriage is recognized as providing both parties with certain mutual rights (e.g., companionship, intimacy). If one party chooses to intentionally neglect or deny his/her spouse of these rights, a Court may find abandonment even if they still live under the same roof.

Note that the intent of the party who leaves or who neglects or denies the other spouse is critical. That party must be shown to have willfully intended to abandon his/her spouse or to end cohabitation.

To successfully demonstrate a case for abandonment, the spouse who is seeking the Divorce from Bed and Board must prove four elements of the ground:

  • That the other spouse intentionally ended cohabitation with the complaining spouse;
  • That it was that spouse’s intent not to resume cohabitation;
  • That it was done without the consent of the injured or complaining spouse; and
  • That it was done without provocation (i.e., that the spouse had no justification for leaving)
  •  Malicious Turning Out of Doors: To establish this ground, the complaining spouse must show that they were evicted from the home by the other spouse, either with malice or wrongfully.
  •  Cruel or Barbarous Treatment: Physical, mental and/or emotional cruelty will satisfy this ground. In fact, whereas the N.C. Courts once narrowly interpreted this ground, today, a broader approach has blurred the line between this ground and the ground of “personal indignities”.

To successfully plead cruelty, the injured spouse must specifically articulate the act or acts of cruelty and demonstrate that the act was unprovoked.

  •  Personal Indignities: This ground establishes a prohibition against a spouse behaving in such a way as to humiliate or cause the degradation of the other. There are three elements when attempting to prove personal indignities:
  • That the accused spouse acted inappropriately;
  • That the actions were committed willfully, maliciously, consciously and/or with the intent to annoy the other spouse; and
  • That the actions were not provoked by the injured spouse.
  •  Alcohol or Drug Abuse: This ground uses the same “condition intolerable and life burdensome”           standard as the ground of personal indignities. The difference is that to establish this ground, the injured spouse must demonstrate that the other spouse’s drug and/or alcohol use is so excessive and frequent as to make the life of the other spouse burdensome or intolerable. It is important to note that the standard requires that the complaining or injured spouse not have had a role in encouraging or inducing the excessive use.
  •  Adultery: A finding of marital infidelity is grounds for a Divorce from Bed and Board.

In a future post, we’ll talk about the defenses to a claim for Divorce from Bed and Board as well as dig deeper into the legal and practical impact of this action.

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.

Page 1 of 212