Divorce From Bed and Board vs. Absolute Divorce in North Carolina?

In North Carolina, two types of Divorce exist: Absolute divorce and Divorce From Bed and Board. It is easy to confuse these two legal topics due to both containing the word Divorce; however, they are two completely different processes, with two completely different results. An Absolute Divorce may only be granted after a full year of separation; however, a Divorce From Bed and Board may be granted prior to separation, is based on fault, can be used to force a spouse out of the marital residence, and is used as a tool to establish the one year of required separation for an Absolute Divorce.

A Divorce From Bed and Board in its truest sense is means to establish a legal separation between two cohabitating spouses when both spouses refuse to leave the marital residence. This can be beneficial in two ways to a spouse granted a Divorce From Bed and Board: (1) a successful spouse that will later be seeking Post Separation Support or Alimony will be able to leave the marital residence without the Supporting Spouse claiming Abandonment and (2) a successful spouse may be able to force the other spouse out of the marital residence.

An Absolute Divorce only alters two legally married individuals’ marital status. Absolute Divorce is granted to legal residents of North Carolina who have been separated for over a year.

This is a major distinction and even though an individual may be granted a Divorce From Bed and Board, that individual cannot remarry until they still effectuate an Absolute Divorce. Hence, a Divorce From Bed and Board can, and is used to effectuate the one year of required separation for an Absolute Divorce. If you have questions about Divorce, contact the Charlotte North Carolina Office of David P. Sheehan at (704) 222-4752 to speak with an Attorney today.

Two different statutes with two different burdens

In North Carolina, the two actions are governed by separate sections of Chapter 50 and share almost nothing. An absolute divorce rests on G.S. 50-6, which requires that the spouses “have lived separate and apart for one year” and that the plaintiff or defendant has resided in the State for six months, or on G.S. 50-5.1, which requires three consecutive years of separation without cohabitation by reason of incurable insanity.

A divorce from bed and board rests on G.S. 50-7 and requires proof of fault. The section provides that the court may grant divorces from bed and board on application of the party injured where the other party abandons his or her family, maliciously turns the other out of doors, by cruel or barbarous treatment endangers the life of the other, offers such indignities as to render the other’s condition intolerable and life burdensome, becomes an excessive user of alcohol or drugs with the same effect, or commits adultery. Nothing about the passage of time satisfies that section, and nothing in it is automatic: the verb is “may grant”, so a judgment follows only where the court is satisfied the ground is made out.

Only absolute divorce dissolves the marriage

In North Carolina, G.S. 50-11(a) provides that “after a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.” That language applies to absolute divorce alone.

A judgment of divorce from bed and board does not dissolve the bonds of matrimony. The parties remain married, neither can remarry, and a party who wants to remarry must still obtain an absolute divorce under G.S. 50-6 once the one-year separation is complete. This is the single most consequential difference between the two, and the one most often missed because both are called divorce.

Fault is a defense in one action and irrelevant in the other

In North Carolina, the conduct that founds a bed and board claim cannot be used to resist an absolute divorce. G.S. 50-6 provides in terms that a divorce under that section “shall not be barred to either party by any defense or plea based upon any provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination.” A spouse who left, or who committed adultery, is entitled to the same absolute divorce as the other spouse once the statutory period has run.

The fact that the legislature had to say so indicates that those pleas are live in a bed and board case. Recrimination — the contention that the complaining spouse was guilty of comparable misconduct — is treated as an answer to a G.S. 50-7 claim, as is condonation of the conduct relied on. Neither is a creature of the section itself; both come from the general law of the fault action, which is one reason a G.S. 50-7 case is harder to predict than an absolute divorce.

One is decided on evidence of conduct, the other on two dates

In North Carolina, an absolute divorce comes down to the date the parties began living separate and apart and the plaintiff’s or defendant’s six months of residence. G.S. 50-8 requires the complaint to be verified in accordance with Rule 11 and to state that residence, and G.S. 50-10(d) applies Rule 56, so an uncontested case is commonly proved on affidavit or verified pleading. G.S. 50-10(e) permits the clerk of superior court to enter judgment in a narrow class of default, admitted and waived cases where absolute divorce, or absolute divorce and resumption of a former name, is the only claim and the defendant is not an infant or an incompetent person.

A bed and board case is a trial about conduct. Under G.S. 50-10 the material facts are deemed denied and must be found by a judge or a jury, and in a fault action that means witnesses, documents and cross-examination on events inside the marriage. Both actions are heard in the district court division under G.S. 7A-244, which for a Charlotte case is the District Court in Mecklenburg County. Venue for a divorce proceeding follows G.S. 50-3, which returns the summons to the court of the county in which either the plaintiff or the defendant resides, subject to the rule in G.S. 50-8 that where the complainant is a nonresident of the State the action shall be brought in the county of the defendant’s residence, with the summons served upon the defendant personally.

Both cut off rights in the other spouse’s estate

In North Carolina, this is the point on which the two actions converge. G.S. 31A-1(a)(1) names “a spouse from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board has been obtained”. A spouse against whom a bed and board judgment is entered therefore loses the rights listed in G.S. 31A-1(b) — rights of intestate succession in the other spouse’s estate, the right to claim or succeed to a homestead, the right to petition for an elective share, the right to a year’s allowance, and the right to administer the other spouse’s estate — while remaining married.

The asymmetry matters. An absolute divorce ends those rights for both parties, because the subsection reaches a spouse from whom or by whom the divorce was obtained. A bed and board judgment reaches only the spouse from whom it is obtained, which is one of the reasons the action is defended rather than conceded.

The claims that have to be preserved before an absolute divorce

In North Carolina, an absolute divorce carries a cut-off that a bed and board judgment does not. Under G.S. 50-11(e), “an absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce”. Two savings provisions qualify that rule. Subsection (e) itself allows a defendant six months from the judgment to bring an action or file a motion in the cause for equitable distribution where service of process was by publication under Rule 4 and the defendant failed to appear in the divorce action. G.S. 50-11(f) allows six months from entry of the judgment where the absolute divorce was granted by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, and permits the validity of that divorce to be attacked in the equitable distribution action. G.S. 50-11(c) preserves alimony and postseparation support where an action was pending when the divorce judgment was granted.

A bed and board action can carry those claims. G.S. 50-21(a) allows equitable distribution to be filed at any time after the parties begin to live separate and apart, and postseparation support under G.S. 50-16.2A, alimony under G.S. 50-16.3A, custody under G.S. 50-13.2 and child support can all be joined. That is one reason a G.S. 50-7 claim is sometimes brought early: it puts a case in front of a judge before the year under G.S. 50-6 has run.

Why one is common and the other is not

In North Carolina, absolute divorce is routine because its elements are objective and its defenses are closed off by statute. Divorce from bed and board is uncommon because it requires proving fault, invites recrimination and condonation as answers, and produces a judgment that stops short of ending the marriage.

Where it is still used, it is generally used for a reason the one-year rule creates. G.S. 50-6 requires the parties to be living separate and apart, which is understood as living in separate residences, and where neither will leave, a fault-based judgment under G.S. 50-7 is the route to a court-sanctioned separation. In the subdivision dealing with cruel or barbarous treatment, G.S. 50-7 adds that the court may in addition grant the victim of such treatment the remedies available under G.S. 50B-1 et seq. That is a permission, not a direction, and those remedies are decided on the standards in Chapter 50B rather than on the divorce statutes.

Common questions

Can a person remarry after a divorce from bed and board?

No. Only an absolute divorce dissolves the marriage. G.S. 50-11(a) provides that after a judgment of divorce from the bonds of matrimony either party may marry again without restriction arising from the dissolved marriage, and that language is directed at absolute divorce rather than at a judgment under G.S. 50-7. A party who wants to remarry must obtain an absolute divorce under G.S. 50-6 after one year of living separate and apart.

Does a divorce from bed and board start the one-year clock?

The period under G.S. 50-6 runs from the date the spouses in fact live separate and apart in different residences. A judgment under G.S. 50-7 does not substitute for that. What it does is establish the fault of the other spouse and provide a judicial basis for one party to live elsewhere, which is why it is used where neither spouse will otherwise leave the marital residence.

Can adultery prevent a spouse from obtaining an absolute divorce in North Carolina?

No. G.S. 50-6 provides that a divorce under that section is not barred by any defense or plea based upon any provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination. Adultery remains significant elsewhere: under G.S. 50-16.3A(a) an act of illicit sexual behavior by a dependent spouse during the marriage and prior to or on the date of separation bars alimony, and such an act by a supporting spouse requires the court to order that alimony be paid; where each of them participated in such an act, the question is left to the court’s discretion.

Is a divorce from bed and board the same as a legal separation?

It is the closest thing North Carolina has to one, but it is a fault judgment rather than a status. There is no filing that creates a legal separation in this State. A judgment under G.S. 50-7 requires proof of one of six statutory grounds, is entered by a district court judge after the material facts are found under G.S. 50-10, and carries the estate consequences set out in G.S. 31A-1.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.