A divorce from bed and board is sometimes necessary to accomplish a legal separation of the parties. The spouse obtaining a divorce from bed and board gains valuable legal rights, such as the right to occupy the marital residence to the exclusion of the other spouse. The losing spouse loses valuable legal rights such as:
- the right intestate succession in the estate of the other spouse;
- all right to claim or succeed to a homestead in the real property of the other spouse;
- all right to petition for an elective share of the estate of the other spouse and to take either the elective share provided or the life interest in lieu thereof;
- all right to a year's allowance in the personal property of the other spouse;
- all right administer the estate of the other spouse; and,
- any rights or interests in the property of the other spouse which by a settlement before or after marriage were settled upon the offending spouse solely in consideration of the marriage.
- In addition, the losing spouse will most likely be removed from the marital residence.
Parties cannot consent to a divorce from bed and board. The action for divorce from bed and board is usually required when one spouse or the other refuses to separate voluntarily. The court, after hearing evidence, may grant a divorce from bed and board and require one party to move out of the marital residence. If both parties are at fault, the court will refuse to grant a divorce from bed and board to either spouse. A divorce from bed and board does not dissolve the marriage and does not grant to either party the right to marry another person.
Although a divorce from bed and board may be alleged (usually in cases where the parties have not yet separated), in most cases the parties can reach an agreement to separate that avoids having to conduct a trial to decide the divorce from bed and board claim. However, where neither party will agree to a separation, a trial may be necessary. If requested, a party is entitled to a jury trial in a divorce from bed and board case.
Fees for divorce from bed and board are determined based on the number of hours involved in the case.