What is Divorce From Bed and Board in North Carolina?

In North Carolina, a Divorce From Bed and Board, also known as a mens et thoro, is the oldest form of Divorce. In its truest form, it is a judicial decree stating two married parties are legally separated. Even though both parties are only separated, A Divorce From Bed and Board allows a party to file for Alimony, Child Custody and Child Support simultaneously.

The grounds are all fault based and the grounds and defenses for this action are all issues of fact and may be tried by a jury. The statutory basis for fault are:

The Abandonment of the marital residence or family by one spouse; Cruel or Barbarous Treatment by one spouse to another; If a spouse offers indignities to the other spouse to the point that their life is rendered to be intolerable or burdensome; Excessive use of Drugs or Alcohol; and The Commission of Adultery by one spouse.

Although Divorce from Bed and Board is alive and well in the North Carolina Court system, modernly, it is rarely used. It is currently used when both spouses refuse to leave the marital residence and a spouse is attempting to force another out of the marital residence.

The six grounds, in the words of G.S. 50-7

In North Carolina, a divorce from bed and board is available only on the grounds listed in G.S. 50-7, and only to the party injured. The section provides that the court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases if either 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 to the person of the other as to render his or her condition intolerable and life burdensome.”
“Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.”
“Commits adultery.”

Every ground is a question of fact

In North Carolina, none of the six grounds is established by the pleadings alone. G.S. 50-10 provides that the material facts in every complaint asking for a divorce or an annulment “shall be deemed to be denied by the defendant”, and that no judgment shall be given in favor of the plaintiff until those facts have been found by a judge or a jury. A defendant who never answers has still not admitted the conduct alleged.

That is a substantially heavier burden than an absolute divorce carries. A case under G.S. 50-6 turns on the date of separation and six months’ residence, and G.S. 50-10(d) applies Rule 56 to it. A case under G.S. 50-7 turns on what happened inside a marriage, proved by testimony and documents, with recrimination and condonation available as answers — pleas that G.S. 50-6 expressly shuts out of an absolute divorce. The section is also permissive in form: it provides that the court “may grant” the judgment, so proof of a ground opens the door rather than compelling a result.

What the judgment is used for

In North Carolina, the practical use of the action is to resolve a living arrangement that neither spouse will resolve voluntarily. The period under G.S. 50-6 begins only when the spouses live separate and apart in different residences, so where both remain in the marital home the one-year period never starts to run. A judgment under G.S. 50-7 gives a court-sanctioned basis for the separation, founded on the other spouse’s fault.

It also addresses a risk that runs the other way. Abandonment is marital misconduct under G.S. 50-16.1A and a ground under G.S. 50-7 in its own right, so a spouse who simply leaves may face that allegation in the support claims that follow. A judgment establishing the other spouse’s fault gives the departing spouse a judicial basis for living apart, which bears directly on whether the departure was an abandonment; it does not, by itself, dispose of every allegation the other spouse might make.

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 rather than a direction. Chapter 50B proceedings are separate, are heard on their own statutory standards, and move on a different timescale from a fault divorce.

The claims that can be joined to it

In North Carolina, a bed and board action can carry the financial and children’s claims with it, which is much of its residual value. G.S. 50-21(a) allows a claim for equitable distribution to be filed “at any time after a husband and wife begin to live separate and apart from each other”, as a separate action, joined with other Chapter 50 claims, or as a motion in the cause. The same subsection then imposes a timetable: the party first asserting the claim must serve an equitable distribution inventory affidavit within 90 days after service of the claim, and the opposing party must serve one within 30 days after that.

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 be brought in the same action. Under G.S. 7A-244 all of them belong to the district court division, without regard to the amount in controversy, which for a Charlotte case means the District Court in Mecklenburg County, so a single file can hold the fault claim and everything that depends on the separation.

What the judgment does not do

In North Carolina, a divorce from bed and board does not dissolve the marriage. 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 … and either party may marry again without restriction arising from the dissolved marriage”, and that language is directed at absolute divorce. Parties subject to a bed and board judgment remain married and cannot remarry.

It also does not shorten the route to an absolute divorce. The one-year period in G.S. 50-6 still has to run from the date the parties in fact began living separate and apart, and a complaint for absolute divorce still has to satisfy G.S. 50-8 as to verification under Rule 11, the six months’ residence of the complainant or the defendant, and the name and age of any minor child of the marriage.

The effect on estate rights

In North Carolina, a judgment of divorce from bed and board has a consequence that survives it. 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”, and G.S. 31A-1(b) lists the rights lost: rights of intestate succession in the other spouse’s estate, the right to claim or succeed to a homestead in the other spouse’s real property, the right to petition for an elective share, the right to a year’s allowance in the personal property, and the right to administer the other spouse’s estate.

Because the bar operates against the spouse from whom the judgment is obtained, and because the parties remain married, a bed and board judgment can leave one spouse with a surviving claim on the other’s estate and the other with none. That asymmetry is a reason these actions are contested rather than conceded.

Why the action has largely fallen out of use

In North Carolina, the reason divorce from bed and board is now uncommon is structural. G.S. 50-6 makes an absolute divorce available to either spouse after a year regardless of fault, and expressly bars any defense based on G.S. 50-7, res judicata or recrimination. A litigant who wants the marriage ended has a route that does not require proving anything about conduct.

What survives is the narrow set of cases in which the year cannot start — where both spouses remain in the marital residence — or in which establishing fault has an independent purpose, whether in the support claims under G.S. 50-16.1A, G.S. 50-16.2A and G.S. 50-16.3A or in the estate consequences under G.S. 31A-1.

Common questions

Is a divorce from bed and board a divorce?

Only in name. G.S. 50-7 produces a judgment of judicial separation founded on fault; it does not dissolve the bonds of matrimony. The language in G.S. 50-11(a) permitting either party to marry again applies after a judgment of divorce from the bonds of matrimony, which means absolute divorce under G.S. 50-6 or G.S. 50-5.1. Parties subject to a bed and board judgment remain married.

Can a divorce from bed and board be granted before one year of separation?

Yes. G.S. 50-7 contains no waiting period. It requires proof that the other party abandoned the family, maliciously turned the other out of doors, endangered life by cruel or barbarous treatment, offered indignities rendering the other’s condition intolerable and life burdensome, became an excessive user of alcohol or drugs with that effect, or committed adultery. The one-year requirement belongs to absolute divorce under G.S. 50-6.

Can the judgment be used to remove a spouse from the marital home?

That is the situation the action is most often used to address, where both spouses remain in the residence and the period under G.S. 50-6 cannot begin. The judgment establishes the other spouse’s fault under one of the G.S. 50-7 grounds, and the section leaves the granting of it to the court’s discretion. G.S. 50-7 also provides that, where the ground is cruel or barbarous treatment, the court may in addition grant the victim the remedies available under G.S. 50B-1 et seq., which are heard on the standards in that Chapter.

What defenses are available to a claim under G.S. 50-7?

Because it is a fault action, the answers that G.S. 50-6 forbids in an absolute divorce are available here. G.S. 50-6 states that an absolute divorce is not barred by a plea of res judicata or of recrimination, which indicates those pleas are live in a bed and board case, along with condonation of the conduct relied on. Under G.S. 50-10 the material facts must in any event be found by a judge or a jury.

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