If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in Tennessee, you have the option of filing for divorce based on your spouse's adultery. Then, if you can prove that claim, the judge might take the adultery into account when deciding whether to award alimony. But there are several other considerations that go into those decisions.
In Tennessee, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Tennessee include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (Tenn. Code § 36-4-101(a)(3) (2022).)
Tennessee courts have found an a spouse's extramarital sexual relationship may be a ground for divorce even if it began after the couple separated. (Perry v. Perry, 765 S.W.2d 776 (Tenn. Ct. App. 1988).)
If you file for divorce in Tennessee based on your spouse's adultery, you'll need to prove that claim. Circumstantial evidence, such as hotel receipts, phone records, emails, texts, and photos may be sufficient. In other words, you don't need to provide direct evidence of the actual sexual encounters.
If you're the one being accused of adultery, you still may have a defense even if the evidence supports your spouse's claims. The judge won't grant a divorce based on your adultery if you can prove that:
The Tennessee law also includes two gender-specific defenses available to a wife who can prove that her husband either:
(Tenn. Code § 36-4-112 (2022).) To the extent that any modern couples would make use of these last two defenses, it's not clear whether courts would apply them in a same-sex marriage.
An award of alimony in a Tennessee divorce isn't automatic. A judge has to determine that it would be warranted under the circumstances of each case.
Tennessee law requires judges to consider a long list of factors when they're deciding whether to award alimony, as well as the amount of the payments and how long they should last. Most of these factors are related to one spouse's need for support and the other spouse's ability to pay. But the list also includes the spouses' "relative fault," when the judge believes it would be appropriate to take that into account. (Tenn. Code § 36-5-121(i) (2022).)
Obviously, "fault" could include adultery. However, even when a judge decides to consider a spouse's adultery, that would only be one factor among many in the decision-making process. And it shouldn't be the most important factor. As Tennessee courts have held, alimony isn't meant to be "punitive." Instead, need and ability to pay are the most important considerations. (Brown v. Brown, 277 S.W.3d 206 (Tenn. Ct. App. 2018).)
Tennessee is an "equitable distribution" state. This means judges will divide the couple's property in a manner they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean an equal 50-50 split.
Tennessee law specifically states that judges may not take marital fault into account when dividing the couple's marital property. (Tenn. Code § 36-4-121(a)(1)(A) (2022).) So does that mean that a spouse's infidelity won't affect property distribution? Technically, yes, if we're talking strictly about the act of adultery itself.
However, some circumstances related to a spouse's adultery might still affect how a judge distributes the couple's property in divorce. That's because a spouse's "dissipation" of assets is one of the factors that judges must consider when they're deciding on an equitable division. The law defines dissipation as "wasteful expenditures which reduce the marital property available for equitable distributions and which are made for a purpose contrary to the marriage." (Tenn. Code § 36-4-121(c)(5) (2022).)
There are probably few things more contrary to a marriage than adultery. So if a cheating spouse used marital funds on the affair—for instance, to pay for lavish gifts, expensive trips, or repeated stays at fancy hotels—a judge could decide to compensate the innocent spouse for the financial loss by awarding a greater share of the remaining assets.
Decisions about child custody and parenting time (visitation) in Tennessee, as in all states, must be based on what would be in the children's best interests. Tennessee law sets out a list of factors for judges to consider when making custody decisions. The list doesn't mention marital misconduct other than domestic abuse. The law does require consideration of each parent's "moral, physical, mental and emotional fitness," but only "as it relates to their ability to parent the child." (Tenn. Code § 36-6-106(a)(8) (2022).)
Some people might argue that adultery is a moral failing or, at least, shows a lack of judgment. But the real question is whether that impacts the ability to be a good parent. Usually, the answer to that question will be no.
In rare cases, however, the circumstances surrounding a parent's adultery might endanger the child's well-being—for instance, if the extramarital relationship involved abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship. In situations like that, the judge could very well consider those circumstances when deciding which custody arrangements would be the child's best interests.
Child support in Tennessee is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, the number of children being supported, and the amount of time the children spend with each parent. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play a role in determining which of them will pay support or the amount of the payments.
No, adultery isn't a crime under Tennessee law.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's generally not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Tennessee, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.