How Much Can An Extramarital Affair Cost Under Tennessee Divorce Laws?

Whether called cheating, adultery, or an extramarital affair, what does Tennessee divorce and alimony law say about how much can sexual relations with someone other than a spouse really cost?

How much will an extramarital relationship cost in Tennessee alimony?

Whether called cheating, adultery, or an extramarital affair, what do Tennessee alimony laws say it costs?

Whether called cheating, adultery, or an extramarital affair, what do Tennessee alimony laws say it costs?

Many states originally required fault in order to grant a divorce.  The court reasoned that if a person knew they would be punished for their wrong-doing, they would think twice from committing the act.  In this way, marriage, considered a sacred agreement, would be protected.  Today however, most states, including Tennessee, see marriage as an economic relationship, and courts are more concerned about the finances of the parties and less on their behavior.

In Tennessee, there are four types of alimony which a court may award: in futuro (periodic); rehabilitative; transitional and; in solido (see Tennessee Alimony Law in Divorce).  In Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011), a recent landmark opinion given by the Tennessee Supreme Court in 2011, the court held that:

The statutory framework for spousal support reflects a legislative preference favoring short-term spousal support over long-term spousal support, with the aim being to rehabilitate a spouse who is economically disadvantaged relative to the other spouse and achieve self-sufficiency where possible.

Tennessee courts may consider a wide array of factors, including fault, in determining an award of spousal support.  (See Tennessee’s Alimony Factors in Divorce).  When the adulterer is also the spouse paying alimony, the court (in Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988)) is clear:

…..that a spouse “whose marriage has been shattered by [her] husband’s [or his wife’s] misconduct should not be left in a financial condition inferior to her [or his] economic situation prior to the parties’ divorce.

The purpose of the law is no longer to punish or prevent inappropriate behavior, but rather to protect the weaker or financially less well off spouse.

The court looks at the financial situation of both parties, that is, the need of the spouse asking for alimony and the ability of the other spouse to pay.  Tennessee courts ruled that “punitive alimony” is not permitted, even for a spouse who committed adultery.

In Tait v. Tait, 207 S.W.3d 270 (Tenn. Ct. App. 2006), the Court wrote:

[i]t is well settled that while fault is a factor to be considered, it must not be applied in a punitive manner against a guilty party in determining the award of alimony. We have stated “alimony is not and never has been intended by our legislature to be punitive.… Nor do we believe it was intended simply as an award of virtue.” 

In Gonsewski, the husband’s infidelity is not even considered and the court’s decision about alimony is based only on finances.  Only in the discussion on alimony in solido (here, attorney’s fees and expenses) did the court consider the behavior of the parties, and then only to point out the harassing behavior and repeated disagreement between the parties which led the court to deny attorney’s fees and expenses to both sides.  Adultery, essentially, played no part in the court’s decision.

Are considerations different for the spouse paying alimony and the spouse receiving it?

In Tennessee, cheating, adultery, or an extramarital affair can be more costly in alimony than one thinks at the time.

In Tennessee, cheating, adultery, or an extramarital affair can be more costly in alimony than one thinks at the time.

While the Tennessee courts ruled that an adulterous spouse who pays alimony may not be punished financially for infidelity, the receiving spouse stands to lose a lot more for his or her extramarital relationships.  Infidelity is a legal factor in determining the amount of alimony the non-offending spouse pays to the partner who was unfaithful.  In Tait, the court stated that “alimony may be reduced due to a spouse’s misconduct.”

If, for example, the partner seeking maintenance has been involved in a long-term extramarital relationship, a judge can reduce his or her maintenance.  The rationale is that the spouse’s conduct  should not be awarded with anything but the most minimal maintenance award permitted by law.

Spending money owned by both spouses on an extramarital relationship may violate Tennessee law.  According to Tenn. Code Ann. § 36-4-106(d),

the parties to a divorce or separation, from early on in the proceedings, are prohibited from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property…

If marital property is “dissipated” in any way as a result of one spouse living with his or her extramarital partner, a court may decide to adjust the alimony payments or property division accordingly.

An adulterous spouse might still be able to lessen some of the damage caused when adultery is involved.   If the non-guilty spouse files for divorce, but then begins dating someone before the divorce is final, s/he can be accused of adultery as well (see above), and loses the right to claim adultery as a grounds for divorce.  If the divorcing couple was intimate after one party learned of the other’s infidelity, Tennessee law considers this “condonation,” and from a legal standpoint, the adulterous party is forgiven.  Finally, the adulterous party can be held blameless if one spouse is introduced to “lewd society” by the other, and leading the spouse to loosened morals, and adultery.

When it comes to alimony, Tennessee law first considers the financial need and ability of each spouse but the courts have room to consider fault, and in particular, adultery, when making their decisions.  Both emotional and financial considerations will play into a ruling where adultery is involved.  An experienced Tennessee family lawyer can help determine how best to proceed and what to expect in your particular circumstances.


References, Resources and More:

Miles Mason


Memphis divorce and family lawyer, Miles Mason, Sr. JD, CPA founded the Miles Mason Family Law Group, PLC. The firm practices divorce and family law exclusively representing clients living in Germantown, Collierville, Bartlett and the surrounding west Tennessee area. For more information about us, see our Meet the Team page.

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