At Fault Divorce in Tennessee

Is Tennessee considered a no fault state in a divorce? What does it mean to file an at fault divorce in Tennessee?

What does it mean to file an at fault divorce in Tennessee? To some people, the very fact that their marriage is on the rocks may be proof enough that someone was at fault. But Tennessee at fault divorce is not interpreted quite so broadly as to include unhappiness without some additional legal basis. There is much more to Tennessee at fault divorce than dissatisfaction with the current situation.

To initiate divorce proceedings on grounds of marital fault, there must be a specific allegation (or allegations) made in the divorce complaint. That allegation must be sufficiently proved for the court to dissolve the marriage, as discussed below. That is not to say, however, that a wide scope of behaviors and circumstances will not be considered marital fault by the court. At fault divorce in Tennessee runs the gamut, from bigamy to attempted murder.

Is Tennessee considered a no fault state in a divorce?

In Tennessee, courts will consider which spouse caused the divorce, including a spouse’s adultery or abuse.  Adultery is one of many specific legal grounds for an “at fault” divorce in Tennessee.  However, if there is an agreed upon divorce, the parties may both be declared divorced without proof of fault.  This is called an “irreconcilable differences divorce.”  Some states have “no-fault” divorces and do not consider adultery or other grounds for divorce when making decisions of property division and spousal support.

Before fully answering the question “Is Tennessee considered a no fault divorce state?” we need to explain the difference between an at fault divorce state and a no-fault divorce state. With divorce in the State of Tennessee, the best answer to the question is “both,” but leaning more toward the former than the latter.

No-Fault Divorce States

In no-fault divorce states like California, Florida, and Wisconsin, only the spouse who filed the petition for divorce need make a statement to the effect that the marriage is “irretrievably broken” (or other similar language). Those are legal grounds indicating that there has been some indeterminate, yet irremediable, breakdown of the marriage. No allegations are necessary regarding the respondent-spouse’s bad acts, addiction, abandonment, or other failings to dissolve the marriage. In these no-fault divorce jurisdictions, the need to “air the dirty laundry” in court in order to obtain a divorce is no longer a necessary part of the legal proceedings.

Having said that, and even though we are talking about no-fault divorce states, in any related spousal support or child custody determination, evidence of marital fault, abuse, neglectful parenting, and so on could certainly come into play. The no-fault divorce does not require proof of marital misconduct, but resolving other related issues may necessitate admission of such evidence.

At Fault Divorce States

If you could find a pure fault divorce state, it would require allegation of some specific bad deed committed by a spouse (an extramarital affair, for instance) in the petition for divorce as the grounds, the legal reasons, for a court to dissolve the marriage. Irreconcilable differences would simply not be an option as grounds for ending the marriage in a pure at fault divorce jurisdiction. As one might imagine, the consequences might be harsh and open the door for couples to risk presenting false or fabricated evidence so they can get on with their lives as single people again.

Tennessee No Fault Divorce

Which brings us to Tennessee’s unique version of at fault divorce. Most at fault divorce states include at least one no-fault ground for divorce. Tennessee law provides for no fault divorce, too. In Tennessee, there are 15 grounds for divorce, two of which do not require proof of fault or marital misconduct. (There may have been marital misconduct, but a spouse’s guilt is not relevant to the court’s determination to order the divorce.) Those two grounds are:

1. Irreconcilable differences; and
2. Two years separation with no minor children.

1. Tennessee Divorce for Irreconcilable Differences

When a spouse files for Tennessee divorce on grounds that the marriage should be dissolved for irreconcilable differences, there is one important caveat. The spouses must agree, as set forth in their pleadings, that they do indeed have such unfixable, irremediable marital problems as to justify the court’s dissolving the bonds of matrimony. No proof of those problems need be entered into evidence or argued at trial, at least on the dissolution of marriage issue.

What happens when the spouses do not agree that their differences are irreconcilable? What if the respondent spouse is ready to reconcile and does not want a divorce? Well, if the only ground for divorce alleged by the filing spouse in his or her complaint was irreconcilable differences, then Tennessee divorce law prevents the court from granting the divorce solely on that basis.

For this reason, an experienced divorce attorney in Tennessee may advise a client to include fault-based grounds in the complaint along with irreconcilable differences (for example, grounds of inappropriate marital conduct). If irreconcilable differences is contested, then the court can move on to determining whether there is sufficient evidence to support the remaining at fault grounds for divorce (inappropriate marital conduct in this example).

2. Two Years Separation with No Minor Children in Tennessee Divorce

The black line rule is that two years separation is not grounds for divorce when the spouses have minor children. This is quite unlike divorce on grounds of irreconcilable differences which does not depend upon whether the parties do or do not have minor children.

It is said that the “two year separation with no minor children” grounds is the only true no-fault divorce action under Tennessee law. You may want to continue reading about this in the discussion on Grounds for Divorce in Tennessee FAQs. If you believe this might apply to your specific circumstances or you need to know how best to proceed with your divorce, do talk to your Memphis TN family lawyer.

Fault Based Divorce vs No-Fault Divorce

When a spouse files for divorce and alleges one of Tennessee’s fault-based grounds (perhaps along with irreconcilable differences as already discussed), then the other spouse’s attorney may offer a defense to the misconduct alleged. Tennessee at fault divorce, which involves determining marital guilt, must also allow for defenses to divorce.

There are many reasons why a spouse would offer a defense to allegations of marital misconduct, such as cruel and inhuman treatment, bigamy, desertion, addiction, or impotence, to name a few. Some reasons are uniquely personal, going directly to the individual’s perception of self, as with impotence where sexual intercourse is impossible. Perhaps more often, though, offering a defense to allegations of marital fault is to avoid additional financial repercussions in the divorce.

Once the alleged marital misconduct, adultery for instance, is proved by a preponderance of the evidence, the spouse’s guilt may be considered by the court when awarding alimony. Additionally, a party’s guilt could also be influential in the court’s child custody determination, depending upon the circumstances. A preponderance of the evidence is not an extremely difficult standard to satisfy either, as the evidence must only prove that something is more likely than not to be true.

Connecting Marital Fault to Tennessee Alimony

Marital guilt can have a significant impact on an alimony award in an at fault divorce in Tennessee. A party’s misconduct can affect the nature, amount, length, and manner of payment of alimony a spouse pays or receives. The judge can consider “the relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so…” along with any other relevant factor. T.C.A. § 36-5-121(i).

Always be mindful that proof of the misconduct used to establish at fault grounds for Tennessee divorce may be comprised of the same proof of fault as the statutory factors for alimony awards. Take a moment to read about the Alimony Factors in Tennessee Divorce Law. Then take a look at Jeff Landers’ article on getting your ex to honor the alimony settlement terms.

Connecting marital fault with child custody in Tennessee divorce

Connecting Marital Fault with Child Custody in Tennessee Divorce

Several of the 15 grounds for divorce in Tennessee require allegations that, if proved, could also influence the court’s child custody determination on legal decision-making and parenting time. If the child’s safety and well-being could be at risk because of a parent’s marital misconduct, then evidence of questionable parenting ability may be examined by the court.

In awarding child custody, the court considers all relevant factors. T.C.A. § 36-6-106. Many of those statutory factors could hinge upon the same evidence used to establish grounds for Tennessee at fault divorce. Consider how children of divorce might be harmed by the same facts and circumstances raised in the following Tennessee grounds for divorce:

• Inappropriate marital conduct (for example, physical domestic violence to the other parent or the child);
• Indignities (for instance, a child witnesses one parent’s attempt to cause the other parent physical pain);
• Adultery (for example, a parent carrying on an extramarital affair in the child’s presence);
• Desertion for one year (leaving one parent, or no parent, to care for the child);
• Abandonment (throwing the other parent out of the marital home, and perhaps the child, too, without providing any means of support);
• Conviction of an infamous crime (for example, the parent is convicted of incest, rape, or some other infamous crime as defined by Tennessee statute);
• Conviction of a felony (for example, a parent’s imprisonment for armed robbery);
• Attempt to kill one’s spouse (for example, one parent’s attempt to run down the other parent with a child in the vehicle); and,
• Habitual drunkenness or abuse of narcotics (for instance, the child observes the parent drinking or using illegal drugs).

Although alimony and child custody may be impacted by evidence of a spouse’s marital fault, the division of property in an at fault divorce in Tennessee should not be. Unlike alimony, fault is not a statutory factor for the court to consider when dividing marital assets and debts equitably between the parties. Of course, once marital guilt is established as grounds for divorce, that knowledge is not erased from the judge’s mind. It might have an undercurrent effect, especially if the particular marital misconduct was egregious or coupled with an attempt to hide assets from division in divorce.

Some may look at allegations of marital fault as having the potential to open Pandora’s Box, although not nearly so dramatically. Of course, the last remaining creature in Pandora’s Box was Hope. Hope is good and heals many wounds. But talking to your lawyer before opening the box is good, too.

To learn more, see 15 Grounds for Divorce in Tennessee.