News

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.

Not all Separation Agreements are created equal.

Today, I had the opportunity to review the Separation Agreement and Property Settlement Contract of a couple. I was asked to review the Agreement because, after less than one year of life working with it, a series of issues had arisen and the Agreement seemed not to address how to handle them.

Unfortunately, the client was right. While there was a whole page dedicated to what would happen if the couple reconciled, there was nothing, absolutely nothing, regarding how extraordinary costs of the two minor children would be addressed. No reference to or provision for modifications to the rather draconian visitation schedule despite the fact that as the kids get older, the current schedule will prohibit them from participating in just about any after-school activity. What there was was a whole bunch of ambiguity regarding the welfare and best interests of the children.

People don’t generally separate and divorce if they are communicating well, share common beliefs and have a similar approach to raising their children. Why then would you want to leave open to individual parental interpretation life altering decisions and behaviors if the parents can’t find common ground on the most basic of issues?

The Separation Agreement and Property Settlement Contract is a road map for life after separation and divorce. If developed and written correctly, the Agreement should anticipate issues and, while the spouses are communicating, formalize responses and resolution. Yes, a Separation Agreement is the memorialization of a transaction, the separation, but if that is the driving function, it will fail as a resource and, more importantly, as a touchstone for ensuring the protection of your individual interests and those of your children, family and loved ones.

When I work with a client, I use a 14-page issue primer that helps all of us to think about how the couple and children will interact after separation and divorce. All those pages and potential issues can be overwhelming but that tool can also make for some of the most livable and lasting Agreements.

What will happen if your 13-year old needs braces? Most orthodontia is not covered by traditional medical insurance plans. Who will pay the several thousand dollars? How will the child get to the weekly appointments?

Who will be responsible for the family pet(s)? Will there be a sharing of food costs? Vet bills?

Who will pay for your daughter’s wedding? Will you be able to bring your new husband as a guest?

Sure, some issues won’t be relevant now or later but, more often than I care to report, Agreements are so sparse that they don’t even address the most obvious issues.

Why is that? Part of the answer lies in the traditional approach to separation and divorce. We have become so used to Courts and other third-parties having answers that we shirk the opportunity to fashion the plan that is best for the family. Second, the traditional adversarial approach to separation and divorce is draining, emotionally and financially. Unfortunately, instead of dialogue, it breeds a war of attrition where the parties chief goal becomes to get it over with as opposed to working through all of the pertinent issues. More issues = more time = more money = more stress. It’s a vicious circle that, unfortunately, creates some of the worst Agreements out there.

Third, many practitioners take a legal-centric approach. That is, the focus is on protecting or ensuring certain legal standing often with little regard for the practical, emotional and even physical realities of separation and divorce.

When the emphasis is not on gearing up for battle but, instead, on building a foundation for the future relationship between a family unit, the resulting document can actually draw disparate spouses together as opposed to driving them further apart.

So, what does a better Agreement look like? It depends. Some are long, like 14 or 16 legal-sized pages. Others are much shorter but are still effective because they address all of the known and anticipated issues. Page count is not as important as consideration and diligence. If you’ve used a structured process, customized to your particular situation and you’ve had good communications between the spouses, the chances of producing a valuable and worthy Agreement rise exponentially.

Don’t settle for any Agreement. You and your family deserve better.

Page 2 of 212