Hatcher Law Group

Separation, Divorce & Annulment

As experienced Charlotte Divorce Attorneys, we can guide you through the entire separation and divorce process.  Please contact us if you have any questions or would like to schedule a consultation. More details on Separation, Divorce, and Annulment are provided below.

Quick Facts:

Despite popular use of the term, “Divorce” is not the name for the process by which husbands and wives typically resolve all aspects of a marital dissolution, such as child custody, child support, spousal support, and property distribution

Two types of divorce: Absolute Divorce and Divorce from Bed and Board

Absolute Divorce – final end to a valid marriage
Divorce from Bed and Board – an authorized separation of a husband and wife by a court of law but not an ending to their marriage

Requirements for an Absolute Divorce (NOT based on incurable insanity)

The parties must have a valid marriage
Either husband or wife is a citizen and resident of North Carolina for at least six months at the time the complaint is filed
Husband and Wife separate with at least one of them having the intent to end the marriage
Must have lived separate and apart for at least one year immediately prior to filing of the complaint

Requirements for an Absolute Divorce (based on incurable insanity)

The parties must have a valid marriage
Either husband or wife is a citizen and resident of North Carolina for at least six months at the time the complaint is filed
Must have lived separate and apart for at least three consecutive years immediately prior to filing of the complaint by sane party

Requirements for a Divorce from Bed and Board

The parties must have a valid marriage
Either husband or wife is a citizen and resident of North Carolina for at least six months at the time the complaint is filed
Fault by either husband or wife as follows:  
Abandonment
Maliciously turning the other out of doors
Cruel and barbarous treatment endangering the life of the other
Offering indignities to the person of the other spouse so as to render his or her condition intolerable and life burdensome
Excessive use of alcohol or drugs
Adultery 

The following marriages are subject to annulment:

Between any two persons nearer of kin than first cousins; or
Between any two persons who are double first cousins; or
Between a male person under 16 years of age and any female; or
Between a female person under sixteen 16 years of age and any male; or
Between persons either of whom has a husband or wife living at the time of such marriage; or
Between persons either of whom is at the time physically impotent; or
Between persons either of whom is at the time incapable of contracting from want of will or understanding; or
A marriage entered into under the representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days of the marriage and which continues uninterrupted for one year, shall be voidable if no child is born to the parties within ten lunar months of the date of separation

There are defenses to an action for annulment.

Once an annulment is granted, the marriage is declared void from its inception. 

No rights of marriage can flow from an annulled marriage.
 
Discussion:           

Many people (including lawyers) misuse the term “divorce.”  Divorce is used as a catch-all term for everything from child custody to determing which party gets which assets and debts.  In actuality, in North Carolina, divorce has a very narrow definition.  There are two types of divorce in this state: an Absolute Divorce and a Divorce from Bed and Board.  An Absolute Divorce is sometimes referred to as a no-fault divorce that brings an end to a marital relationship.  In other words, it is the process by which married people become unmarried and are then able to legally marry again.  Notice that there is no mention of child custody, child support, alimony, or property distribution in the definition.  Although an absolute divorce may have an impact or effect on these issues, in its simplest form, the absolute divorce is designed just to bring about the legal conclusion to a valid marriage.

The elements of the two types of absolute divorce:

The most common absolute divorce involves a married couple with at least one person desiring the end of the relationship.  In order to file a lawsuit in North Carolina seeking an absolute divorce under these circumstances, either the husband or wife must show the following:

1. The parties are legally married;

2. At least one of the parties is a citizen and resident of the State of North Carolina for six months immediately preceding the filing of the lawsuit;

3. The parties have separated from one another and at least one of them wants the marriage to end; and

4. Once separated, the parties continue to live separate and apart without cohabitation for a year immediately preceding the filing of the lawsuit. NCGS 50-6


A far more rare type of absolute divoce involves the situation where one of the parties suffers from incurable insanity.  In order to file a lawsuit in North Carolina seeking an absolute divorce under these circumstances, either the husband or wife must show the following:

1. The parties are legally married;

2. At least one of the parties is a citizen and resident of the State of North  Carolina for six months immediately preceding the filing of the lawsuit;

3. The parties have separated from one another because of the incurable insanity of one of the parties; and

4. Once separated and immediately preceding the filing of the lawsuit, the parties continue to live separate and apart without cohabitation for three consecutive years due to the incurable insanity. NCGS 50-5.1

What does all this legal mumbojumbo mean?  Let’s break it down piece by piece.

1.  “The parties are legally married”

Under North Carolina law, a valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:


            1) in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate and with the consequent declaration by the minister or magistrate that the persons are husband and wife.

            or
 

            2) in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe. NCGS 51-1

Before a marriage may be solemnized by one of the persons listed above, a valid marriage license signed by the register of deeds (or his deputy or assistant) from the county in which the license was issued must be presented. In addition, there must be at least two witnesses to the marriage ceremony. NCGS 51-6 The man and woman marrying must also meet certain age and kinship requirements to wed. NCGS 51-2 through 4

It may seem like common sense, but only the legally married husband and wife may bring the action for divorce.  Neither the children of the parties nor anyone else should be joined as a party to the divorce action.
        
2. “At least one of the parties is a citizen and resident of the State of North Carolina for six months immediately preceding the filing of the lawsuit”          

A person is considered a citizen and resident of North Carolina when he or she is domiciled in this state.  Domicile is defined as residence and the intention of the person to make a permanent home in this state.  The obvious goals of this requirement are to ensure that only North Carolina residents utilize its state funded court system and to prevent persons from immediately filing a lawsuit upon moving here. 

For the divorce where incurable insanity is not involved:

3. “The parties have separated from one another and at least one of them wants the marriage to end”

To qualify as a valid separation under this requirement of our law, the physical separation of the parties must be accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation on a permanent basis.  The intention must exist on the date alleged as the separation and continue up to the filing of the action. Cohabitation means living together as husband and wife, including marital duties and obligations, though not necessarily implying sexual relations.  It is clear that only one of the parties must want the marriage to end in order for the separation to begin for purposes of obtaining a divorce.  Further, the permission of a court is also not required for a party to separate from his or her spouse.  As a result, one spouse can not make the other spouse remain in a marriage by refusing to separate or consent to the end of the marriage.

4. “Once separated, the parties continue to live separate and apart without cohabitation for a year immediately preceding the filing of the lawsuit”

This provision creates the notion of a no-fault divorce.  Neither party has to allege the other has committed a fault ground in order to obtain a divorce.  Rather, upon separation, the parties simply let time pass while not cohabiting.  The period of one year of separation is seen by the North Carolina legislature as an indication that the marriage is no longer viable and is not worth saving.  As the North Carolina Appeals Court put it, “This section was enacted in order to enable a husband and wife to terminate their marriage without the sensationalism and public airing of dirty linen which necessarily accompany a divorce based on fault.”  Harrington v. Harrington, 22 NC App. 419, 206 SE2d 742, rev’d on other grounds, 286 NC 260, 210 SE2d 190 (1974).

The parties can not reside in the same residence during the separation period in order for the separation to qualify for the divorce.  By reside, it is meant that the parties continue to live together on a regular basis and cohabit.  It has been found in the courts of review in this state that limited periods of time spent together in the same residence after separation does not constitute cohabitation and end the separation period.  The divorce statute specifically states that, “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.”  A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.  In applying this standard, our courts have looked at the actions of the couple in holding themselves out as man and wife as well as the intent of the parties.  In the end, if a married person wants to satisfy this requirement of the law in order to obtain a divorce, he should dwell separate and apart from his spouse for the separation period and avoid any conduct which is indicative of marriage.

For the divorce where incurable insanity is involved:

1. “The parties have separated from one another because of the incurable insanity of one of the parties”

One must prove not only that the person’s spouse suffers from incurable insanity but also that it was this insanity which caused the separation.  Lesser forms of mental incompetence are insufficient to meet the requirements of this statute, even if they cause the separation.  To meet this statute’s definition of incurable insanity one must  prove the mental impairment is to such extent that the person does not understand what he or she is engaged in doing, and the nature and consequences of the act.  Further, the Attorney General for the State of North Carolina has determined that this law is applicable to situations where the separation occurred prior to the onset of the mental incompetence.

2. “Once separated and immediately preceding the filing of the lawsuit, the parties continue to live separate and apart without       cohabitation for three consecutive years due to the incurable insanity”

The incurable insanity must last for three consecutive years after the separation.  There are numerous ways to prove the longevity of the insanity under the statute, including testimony of treating physicians.  If the insane spouse has been released into the custody of the sane spouse on a trial basis,  this shall not be considered an act which tolls the three year time requirement nor constitutes cohabitation. Two interesting side notes to this relatively obscure and rarely used law: 1) if it is determined that the sane spouse is guilty of conduct which brought about the unsoundness of the mind of the insane spouse, the divorce will not be granted even if all the other requirements are met; and 2) if the divorce is granted but the insane spouse has insufficient income and property to provide for his or her own care and maintenance, the court will require the sane spouse to provide for this care and maintenance for the remainder of the insane spouse’s lifetime.

Defenses to an action for absolute divorce:

The only defenses center around disproving the actual elements for the absolute divorce.  Jurisdictional arguments can be made if one can prove that the parties were never legally married or that neither of the parties was a citizen and resident of the State of North Carolina for requisite period before the lawsuit was filed.  However, the most typical arguments made in contradiction to a request for an absolute divorce are that the separation has not been of a sufficient length when the action was filed.  Sometimes parties who represent themselves are so anxious to obtain the divorce that they file on the one year (or three year in the case of incurable insanity) anniversary of the separation.  The statute requires the separation period to be of that length; so filing on the actual anniversary date is less than the time required.  This is a common problem for the party representing himself and is often handled by the trial judge denying the request for divorce with little or no explanation.  A good rule of thumb is to file one year (or three years with incurable insanity) and one day after the date of separation. As an odd twist, some defendants have attempted to use the defense of incurable insanity to prevent the entry of an order for absolute divorce following a year’s separation.  The thrust of the defense is to assert that three years, rather than one, of separation are required for the absolute divorce because the defendant is incurably insane.

Effects of Absolute Divorce

There are many effects of an absolute divorce besides the obvious right to marry someone else.  For many, the divorce judgment allows for closure to a difficult time in their life and allows them to move forward with a fresh start.  In this regard, a wife may resume the use of her maiden name through an absolute divorce judgment.  However, only the wife may ask for this relief.  Should a husband file for the divorce and the wife fail to answer and counterclaim for the return to her maiden name, she may be deemed to have waived this possibility.  Conversely, the husband can not request that his wife be forced to resume the use of her maiden name.  It is important to point out that a court will simply grant the wife to resume the use of her maiden name, but not compel her to use it.  As a practice pointer, the wife may make the request so that she can resume the use of her maiden name some time in the future.  The wife should consider this option from an economical standpoint because should she miss her opportunity through the divorce judgment, she may be forced to seek a name change if she wants the legal right to resume the use of her maiden name.  This additional action could prove expensive and may be limited under the name change laws of this state.

A divorce judgment can potentially impact the financial circumstances of the parties.  At the time the divorce judgment is entered, if the parties have not preserved their rights to spousal support and property distribution by either a valid, written agreement, a court order, or a pending claim before a court, all claims for spousal support are barred and property goes to the party with title.  That’s right, failing to address these issues before the divorce is final may seriously impact your financial situation.  It is irrelevant whether one party has continued to provide money or support to the other party while they were separated and awaiting the divorce.  It is also irrelevant whether one party has possession of a piece of property if it is titled in the name of the other party.  In those scenarios if alimony and property distribution are not addressed in time, there is no obligation to continue to provide spousal support nor does a party with possession of property have priority over the party with legal title.  But what about property titled in both parties’ names?  When the divorce judgment is entered both parties still have an ownership interest but that interest has changed from a tenancy by the entireties to a tenancy in common.  The main difference is the types of ownership is that now either of you may attempt to sell, transfer, or encumber your interest without the consent of the other.  Ramifications of this new ownership type can be staggering and a serious point of harassment if the break up of your marriage was contentious.  For final resolution of your rights in this situation you must either reach a mutual agreement or seek the assistance of the court in a separate action. This is one more headache that you want to avoid.

It is important to note that the entry of an absolute divorce judgment will not affect either party’s rights to child custody or child support.  These rights are always with the parent regardless of marital status.  Therefore, it is not a bar to an action for custody or child support that a divorce has been granted.  A party can bring these claims at any time before, during, or after the lawsuit for an absolute divorce.

When people marry, they automatically obtain rights to inherit from their spouse; even if the spouse has a will to the contrary.  Another effect of the divorce is that all estate claims are voided.  That is, your rights to inherit from your spouse, simply because your are married to him or her, are terminated. If your spouse does not have a will or has a will but has chosen to exclude you from it, you will have no rights to his estate at his death.  To add insult to injury, your failure to revise your will after your separation may lead to posthumous consequences you did not intend.  For example, even if you are legally divorced and have resolved all other financial issues with your spouse, if you have failed to remove your former spouse from the will then after your death your ex still stands to inherit from you.

Since the parties can not file an action for absolute divorce for at least one year from their separation, many of these problems will be avoided either through the execution of separation and property settlement agreements or by filing an action for spousal support and/or property distribution. Not knowing the law is no excuse once the divorce judgment is entered.  Therefore, it is important to speak with an experienced family law attorney before an absolute divorce judgment is entered so as to ensure your rights are protected.

The Process:       

All absolute divorce lawsuits start with the filing of a civil summons and a complaint.  The civil summons is simply a form designed to prove the defendant in the lawsuit has been properly served with the lawsuit.  It is important to prove the defendant is aware of the divorce lawsuit.  Without this proof, the court will not grant the divorce.  Public policy in this state demands that parties be aware of lawsuits filed against them and provided an opportunity to respond before final rulings are made by a court of law.  The complaint is the original document filed with the court which sets forth the claims for which relief are sought from the court.  In an absolute divorce action, the complaint will list the elements of the divorce action (see above) with allegations that these elements have been met and that a judgment of absolute divorce is appropriate.

The civil summons and the complaint are taken by the complaining party to the office of the clerk of the civil court.  These documents are filed with the clerk and a filing fee is paid.  Once filed and the fee paid, the lawsuit has been initiated and file number will be given to the lawsuit.  This number identifies the lawsuit and will be used from this point forward.  It is the responsibility of the party filing the lawsuit to provide a copy of the lawsuit to the defendant and later provide proof of that service to the clerk of court.  It is not the responsibility of the clerk or anyone else to have the complaint and civil summons served.  Failure to complete this task will prevent the suit from proceeding further.  Service may be accomplished a number of ways under the law, including certified mail return receipt requested, personal delivery by sheriff’s deputy or process server, and, as a last resort, service via publication.  Before attempting any of these methods, you should review the law thoroughly or consult with an experienced family law attorney in the area where you plan to file the lawsuit.

Each county in North Carolina has its own local rules regarding what takes place next in the life of the absolute divorce action.  The defendant is entitled to no less than thirty (30) days to respond to the lawsuit before further steps can be taken.  Once sufficient time has passed from the valid service of the lawsuit, the party who initiated the lawsuit requests the judge to review the claims made and grant appropriate relief.  By appropriate relief, we mean that a judgment of absolute divorce is entered.  The request can be made in open court at a hearing scheduled and noticed to the opposing party or by means of a motion for judgment in a summary manner.  Remember that each and every document or item that is filed at the courthouse in the lawsuit must be provided to the opposing party.  So, when requesting entry of the absolute divorce judment, it is imperative to provide the other party with notice and plenty of time to respond and/or appear at any hearings.

If there is a hearing, the initiating party may be expected to provide sworn testimony.  The testimony may consist of simply reciting the facts set forth in the original complaint or it may be involved as answering questions from the judge or the opposing party.  Upon hearing evidence to its satisfaction, the judge will make a ruling.  That ruling will either grant the absolute divorce requested or deny it.  Either way, a judgment will be entered in the case.  This written ruling can be used by both parties to prove the entry of the absolute divorce as of a specific date.

Overall, the process of obtaining an absolute divorce is relatively simple to an experienced family law attorney.  The simplicity typically comes as a result of experience handling these matters and familiarity with the court system and its requirements.  As a result, the cost for obtaining an absolute divorce should be a fixed amount.  The only cost which should fluctuate in an absolute divorce lawsuit relates to filing fees and charges for service of the complaint on the defendant.  Even with the fixed costs, many litigants either can not afford the expense or choose to represent themselves.  Many counties offer self-help centers to assist litigants representing themselves.  You should remember that the centers are called self-help because most of the work and as a result, most of the risk, is on your shoulders.  You should not expect free legal advice or someone to walk you to the particular places in the courthouse where the filing takes place.  It is against the law to provide legal advice without a valid license in this state.  Accordingly, other than providing blank forms and information booklets, these centers and the staff who work at the courthouse can not and will not answer all of your questions.  However, given the significant effects of the entry of a divorce judgment, the money spent on the assistance of an experienced family law attorney may be well worth it.

The Elements of Divorce from Bed and Board

Divorce from bed and board is the ugly stepsister to the absolute divorce.  It does not achieve a final termination to marriage by its entry.  Rather, it is a cause of action which has been around for many years but is often forgotten except as a tool to assist parties in cases of extreme stubborness.  Even the name of this type of claim sounds antiquated.  Today its use is rare and limited to the accomplishment of three things: 1) forcing the opposing spouse to move from the former marital residence, 2) obtaining judicial authorization for separation, or 3) allowing the party an avenue to allege marital misconduct which is otherwise irrelevant to the proceedings.  In fact, a divorce from bed and board is really nothing more than a judicial separation for two parties who refuse to separate.  Sometimes both of the parties wish to stay in the former marital residence out of financial necessity or for strategic purposes.  Without separation, many forms of relief from the court are not available (i.e. absolute divorce).  Once the separation is ordered via the divorce from bed and board judgment, the parties can proceed with other claims for relief.  Other times, one or both of the parties is unwilling to separate for fear of being charged with abandonment.  A claim of abandonment no longer carries with it the social stigma of the past nor the legal implications so many fear.  Still, abandonment is a fault ground which may be alleged in support of a claim for spousal support.  Therefore, if the court sanctions the separation then there can be no conclusion of abandonment resulting from the final separation of the parties.  Finally, a party may strategically make a claim for divorce from bed and board in order to bring allegations of marital misconduct before a court.  Since the claim may be made after the parties separate, this is a useful tool for airing dirty laundry of the other party for what many may believe a tactical advantage.

In order to obtain a judgment of divorce from bed and board, one must prove the following:

1. The parties must have a valid marriage; 

2. Either husband or wife is a citizen and resident of North Carolina for at least six months at the time the complaint is filed;

3. Fault by either husband or wife as follows (only one need be proven):

a. Abandonment;

b. Maliciously turning the other out of doors;

c. Cruel and barbarous treatment endangering the life of the other;

d. Offering indignities to the person of the other spouse so as to render his or her condition intolerable and life burdensome;

e. Excessive use of alcohol or drugs; or

f. Adultery.   

What does all this legal mumbojumbo mean?  Let’s break it down piece by piece.

1.  “The parties are legally married”

Under North Carolina law, a valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

            1) in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate and with the consequent declaration by the minister or magistrate that the persons are husband and wife 

            or
 
            2) in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe. NCGS 51-1

Before a marriage may be solemnized by one of the persons listed above, a valid marriage license signed by the register of deeds (or his deputy or assistant) from the county in which the license was issued must be presented. In addition, there must be at least two (2) witnesses to the marriage ceremony. NCGS 51-6 The man and woman marrying must also meet certain age and kinship requirements to wed. NCGS 51-2 through 4

It may seem like common sense, but only the legally married husband and wife may bring the action for divorce.  Neither the children of the parties nor anyone else should be joined as a party to the divorce action.

2. “At least one of the parties is a citizen and resident of the State of North Carolina for six (6) months immediately preceding the filing of the lawsuit”
          

A person is considered a citizen and resident of North Carolina when he or she is domiciled in this state.  Domicile is defined as residence and the intention of the person to make a permanent home in this state.  The obvious goals of this requirement are to ensure that only North Carolina residents utilize its state funded court system and to prevent persons from immediately filing a lawsuit upon moving here.         
                                                                     
3. “Fault by either husband or wife as follows:  

                       a.     Abandonment;

                       b.     Maliciously turning the other out

                               of doors;

                       c.     Cruel and barbarous treatment

                               endangering the life of the other;

                       d.     Offering indignities to the person

                               of the other spouse so as to 

                               render his or her condition

                               intolerable and life burdensome                           

                       e.     Excessive use of alcohol or drugs;

                               or

                       f.      Adultery.”

 

 

“a. Abandonment”

Abandonment is a term which is misunderstood and frequently misused by the public.  Many  people mistakenly believe that simply leaving the marital residence, not matter the circumstances, constitutes abandonment. Our state courts of review have defined it as the act of one spouse bringing the cohabitation of the parties to an end without justification, without the consent of the other spouse, and without intent of renewing it.  However, it is not necessary for one spouse to leave the other in order for abandonment to occur.  Rather, by cruelly treating one’s spouse or refusing to provide support for one’s spouse, one’s conduct may compel the aggrieved spouse to leave the relationship.  The aggrieved spouse would still be entitled under our law to claim the mistreating spouse had committed abandonment.  When the conduct of one spouse causes the other to leave, it is called constructive abandonment.  Although there is no bright line test for what constitutes constructive abandonment, generally the court considers all of the facts and circumstances of the case to ask  whether the withdrawing spouse was justified in leaving.  The conduct of the spouse engaged in the constructive abandonment must be willful and make it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect.  Finally, mutual agreement to separate can not typically be alleged as abandonment.  The only exception is when a spouse is induced to agree to the separation because of the misconduct of the other spouse.       

“b.     Maliciously turning the other out of doors”

One can imagine that this fault ground was more popular when North Carolina was more of a rural, less populated state.  The term makes one imagine an angry husband putting his wife out of their house in the middle of the night and locking the door behind her.  In our more urban current condition, it is difficult to comprehend a spouse’s ability to take this action now.  The police would certainly be summoned and allow the spouse back in the home.  A more recent application of this fault ground may turn on misuse of the domestic violence statutes which allow a party to obtain an emergency order putting someone out of the home on at least a temporary basis.  If the allegations which gave rise to the emergency order are later disproved, the aggrieved party may argue that he or she was maliciously turned out of doors.

What if the spouse leaves but then attempts to return to the home and you refuse to allow him or her back in?  Is this maliciously turning the other out of doors?  Maybe.  However, North Carolina has a criminal domestic trespass law which may assist the spouse who remained in the home.  For criminal domestic trespass to have occurred you must prove that someone left the home voluntarily, the remaining spouse informed the departing spouse not to return, and then the departing spouse attempted to return. [confirm and clarify definition]  This is a crime and law enforcement are the ones to enforce it.  As a word of warning, without fail law enforcement folks dread domestic disputes more than any other calls.  They may be reluctant to press the charge of criminal domestic trespass.  But, to protect yourself against the fault ground of maliciously turning the other out of doors, it may benefit you to create a record that the authorities were contacted and you attempted to lodge these charges.

“c. Cruel and barbarous treatment endangering the life of the other”

Generally, this fault ground involves violent actions or threats of violent actions.  However, our courts have ruled that an actual allegation of physical violence is not required to satisfy the requirements of this fault ground. It is clear that the behavior must be of such significance that it actually endangers the life of the other party.

This fault ground is limited in some ways.  It appears that events which took place in the distant past will not qualify as fault grounds.  Our courts have advised that the events must be fairly recent.  Otherwise, the alleging party has difficulty explaining why he or she continued to reside with the abusive party.  That leads to one of the other limitations of this fault ground: condonation of behavior.  Condonation is a term in our law which typically means a conditional forgiveness.  Although the opposing party has treated you in a cruel and barbarous manner, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again.  The actions which may constitute forgiveness range from words, to continued cohabitation together, to sexual intercourse.  It is assumed that you have forgiven the other party because you did not separate nor seek immediate remedy for the wrongs done against you.  The effect of condonation is that the party who committed the cruel and barbarous treatment may not have the behavior alleged against him or her.  Only if the behavior occurs again, may the aggrieved party renew these claims.  The standard for the behavior after condonation is much lower, according to our courts, than for the original claims.  Finally, the conduct complained of must not have been provoked.  Simply put, you can not start a fight and then complain when the other party responds in kind.

As a side note, the law does allow for a party seeking a divorce from bed and board to seek the remedies available under the domestic violence statute.  Should a party seeking the divorce from bed and board allege marital fault which meets the definition of domestic violence, he or she may be entitled to a domestic violence restraining order being entered against the opposing party.

“d. Offering indignities to the person of the other spouse so as to render his or her condition intolerable and life burdensome”

Almost every married couple offer indignities to each other.  Indignities is the catch-all term for embarrassing, humiliating, and generally treating the other party poorly.  The harsh words in an argument, the refusal to assist in the marriage, staying out late at night without calling, are all potential examples of indignities.  Each case is different and the court must consider the facts and circumstances surrounding the alleged conduct as well as the overall way of life of the couple.  What may constitute indignities in one marriage may be commonplace communication in another.  In every case, the behavior must have been intentional and willful or at least consciously by the party committing the acts of indignities.  The behavior must also be repeated or continuous in order to meet the standard.  In order to render someone’s condition intolerable and life burdensome, our courts have required the actions to occur more than once throughout the marriage.

Our courts have required a party alleging this fault ground to specifically set forth the circumstances of each claim, the conduct of the complaining party, and an assertion that the complaining party has taken no actions to provoke this behavior or conduct.  It is not sufficient to make a general claim of indignities by the other party.  Each instance must be described in order to allow the defending party the opportunity to understand the allegations and adequately respond.  In the same vein, the complaining party can not make this claim if he or she has “unclean” hands.  That is, one who is guilty of the same indignities will have difficulty alleging these indignities against another.  Finally, the complaining party can not provoke the behavior of which he or she complains.   To simply allege one has been faithful and dutiful is not enough.

“e.     Excessive use of alcohol or drugs”

Interestingly enough, the actual requirement is that the party “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.” [underline added]  The question becomes whether the use is excessive and renders the other spouse’s condition intolerable and life burdensome.  As with the other fault grounds, the actions must be continual throughout the marriage and each case will be decided by its own facts.  There is no bright line test of what constitutes “excessive” use or what “intolerable” and “burdensome” mean.  As with the other grounds, a party with unclean hands will have more difficulty in proving his case.  Good indications of excessive use may include receipts from the purchase of alcohol on a regular basis, witness testimony, criminal records, medical records, and participation in support groups for alcohol and drug abuse.  One may consider testimony from friends, relatives, and health care professionals regarding proving intolerable condition and burdensome life.


“f. Adultery”

Adultery is recognized as the voluntary act of sexual intercourse by a married person with a third party.  The behavior must not have come about as a result of connivance.  Connivance occurs when one party causes or induces the other party to commit the act.  For example, a husband can not later accuse his wife of adultery if he encouraged her to engage in sexual intercourse with a third party. 

Defenses to an action for divorce from bed and board:

There is no statutory defense to a divorce from bed and board.  Overall, if the elements described above can not be proven, then the divorce will not be granted.  However, the following are sometimes used as defenses to the claim: 1) adultery, 2) condonation, 3) connivance, and 4) recrimination.

Whether the complaining party has alleged adultery, the defending party may allege adultery as a defense. Adultery is recognized as the voluntary act of sexual intercourse by a married person with a third party. 

Condonation is a term in our law which typically means a conditional forgiveness.  Although the opposing party has committed marital fault, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again.  The actions which may constitute forgiveness range from words, to continued cohabitation together, to sexual intercourse.  It is assumed you have forgiven the other party because you did not separate nor seek immediate remedy for the wrongs done against you.  The effect of condonation is that the party who committed the cruel and barbarous treatment may not have the behavior alleged against him or her.  Only if the behavior occurs again, may the aggrieved party renew these claims.

Connivance occurs when one party causes or induces the other party to commit the marital fault.  For example, a husband can not later accuse his wife of adultery if he encouraged her to engage in sexual intercourse with a third party.  Another example is found with cruel and barbarous treatment.  If a wife attacks her husband or induces him to strike her, she can not later claim he has committed marital fault if he does strike her.

Recrimination is similar to the idea of having unclean hands when bringing a claim for divorce from bed and board.  If the party requesting the divorce from bed and board has committed conduct which would entitle the other party to a divorce from bed and board, this is called recrimination.

Effects of Divorce from Bed and Board:

As mentioned from the outset, a judgment of divorce from bed and board brings about a number of effects.  First and foremost, the parties are now authorized by the court to separate from one another without the threat of a claim of abandonment lingering overhead.  One of the parties must now move out or there is a risk that the judgment will be set aside or declared automatically void as a matter of law.  As a practical matter, the party seeking the divorce from bed and board usually requests the court to grant him or her the exclusive possession of the marital residence upon the entry of the divorce judgment.  However, unless the claim for divorce from bed and board is coupled with another claim for relief such as child support or spousal support, the court may have no authority under law to say who is move out.  Therefore, the reader is cautioned to remember the old adage to be careful what you ask for because you might actually get it.

The parties may not cohabit with a member of the opposite sex. Cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship.  Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.

The separation allows the parties to file any other claims which may be conditioned upon their separation.  Our statute conditions equitable distribution (property distribution) claims upon the separation of the parties.  Once the judgment is granted and the parties have separated, they may allege claims for equitable distribution.  Claims of spousal support, custody, and child support are not contingent upon the separation of the parties and may be made at the same time as a claim for divorce from bed and board.

The party granted the divorce from bed and board may sell and convey real property (i.e. real estate) without the joinder (permission or involvement) of the other party.  However, if the parties to the divorce from bed and board owned real property as tenants by the entirety, even after the entry of the judgment the death of the party against whom the judgment was entered will not keep the prevailing party from inheriting the property.  The contrary is true for the party who was granted the divorce from bed and board; should she die her rights in the property held as tenants by the entirety shall remain with her estate, not go to the other party.  Please note, the entry of the judgment of divorce from bed and board will not affect the ultimate ownership interests or rights or titles to real and personal property.

Rights upon the death of the other party are affected by the entry of a divorce from bed and board.  As with real property, the rights of the party against whom the divorce has been granted are impacted while the rights of the prevailing party do not change.  As a married couple, a man and woman in North Carolina are bestowed certain rights upon the death of his or her spouse.  Most of these rights are rescinded for the party against whom the divorce has been granted but remain intact for the prevailing party.  Please note, the entry of the judgment of divorce from bed and board will not affect the right of either party to take property under a duly executed will.  Therefore, it is prudent for a party going through divorce to seek assistance with the preparation of a new will.

The Process:

All divorce from bed and board lawsuits start with the filing of a civil summons and a complaint or by making a motion in an already existing lawsuit.  The civil summons is simply a form designed to prove the defendant in the lawsuit has been properly served with the lawsuit.  It is important to prove the defendant is aware of the divorce lawsuit.  Without this proof, the court will not grant the divorce.  Public policy in this state demands that parties be aware of lawsuits filed against them and provided an opportunity to respond before final rulings are made by a court of law.  The complaint is the original document filed with the court which sets forth the claims for which relief are sought from the court.  In a divorce from bed and board action, the complaint will list the elements of the divorce action (see above) with allegations that these elements have been met and that a judgment of divorce is appropriate.  When a motion seeking a divorce from bed and board is filed with the court, the elements are alleged in the same manner as with a complaint.  The motion must also be served upon the opposing party but the service requirements are not as rigorous.

The civil summons and the complaint are taken by the complaining party to the office of the clerk of the civil court.  These documents are filed with the clerk and a filing fee is paid.  Once filed and the fee paid, the lawsuit has been initiated and file number will be given to the lawsuit.  This number identifies the lawsuit and will be used from this point forward.  It is the responsibility of the party filing the lawsuit to provide a copy of the lawsuit to the defendant and later provide proof of that service to the clerk of court.  It is not the responsibility of the clerk or anyone else to have the complaint and civil summons served.  Failure to complete this task will prevent the suit from proceeding further.&nbs