Board Certified Family Law Specialist Matt Arnold answers the question: “Does adultery affect my divorce case?”
North Carolina’s family law allows spouses to obtain a legal separation by asking the court for what is known as a divorce from bed and board. While this type of “divorce” does not end your marriage, it has a significant impact on the rights you and your husband/wife have.
Generally, North Carolina law recognizes six grounds for a divorce from bed and board. To obtain this type of divorce in Charlotte or other parts of the state, the “injured” spouse must show that the other spouse has committed a marital fault.
To qualify for a divorce from bed and board in North Carolina, you must demonstrate evidence of any of these six types of fault on the part of your spouse:
- Malicious turning out-of-doors
- Abandonment of the family
- Cruel or barbarous treatment to the point that it endangers your life
- Excessive use of drugs or alcohol making his or her condition intolerable or your life burdensome
- Indignities that make your life burdensome or the spouse’s condition intolerable
How Will a Divorce From Bed and Board Affect Your Marital Rights?
In North Carolina, a decree of divorce from bed and board has a tremendous effect on the rights of the spouse who committed a marital fault. By obtaining this type of divorce, your spouse will lose all of the following marital rights:
- Cohabitation. If you obtained a divorce from bed and board, your spouse would no longer have the right to cohabitation. Nonetheless, the prevailing spouse may still be awarded the marital residence in property distribution.
- Intestate succession. Your spouse will lose the right to inherit from you unless your will says otherwise.
- Petition for an elective share. A divorce from bed and board extinguishes your spouse’s right to petition the court for an elective share of your estate.
- Homestead. Also, the losing spouse will lose his or her right to a homestead in the prevailing spouse’s property.
- Dissent. If you have a will, your spouse no longer has the right to dissent from your will.
- Administer your estate. A divorce from bed and board results in the accused spouse’s loss of the right to administer the prevailing spouse’s estate.
By obtaining a divorce from bed and board, the prevailing spouse retains many of her or his rights in North Carolina. These rights include:
- The right to sell the marital property – both real and personal – without the other spouse’s consent
- The right to inherit from the losing spouse
- The right to take an elective share in the other spouse’s estate
- The right to claim homestead rights
- The right to dissent from the losing spouse’s will
- The right to a year’s allowance in the other party’s personal property
Meanwhile, a divorce from bed and board has no effect on certain other marital rights, such as property rights, child custody, and child support. If you are considering requesting a divorce from bed and board in Charlotte or other parts of North Carolina but are unaware of the potential consequences, speak with our detail-oriented and well-versed lawyers in or around Charlotte, Lake Norman, or at our new office in Monroe, please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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