Adultery Divorce Laws in Tennessee

In Tennessee law, evidence of adultery is presented in court rather matter-of-factly, just as it should be with all statutory grounds for divorce. Without contrived intrigue and lust passing for high drama. That is not to say, however, that adultery cases are passionless divorces, devoid of interesting facts and circumstances. Far from it!

Adultery divorce laws in Tennessee

During divorce proceedings, the judge and both attorneys will analyze proof of infidelity forensically. Quite unlike those who translate matters-of-the-heart into something more marketable (namely novelists, celebrity tabloids, and songwriters of the Beale Street and Memphis Blues).

Illicit affairs are a recurring theme, something popular culture never tires of. Adultery is a cause célèbre. With predictable consequences, the plot may offer an occasional surprise twist at the end. Divorce by adultery has sold more literature, movies, and lyrics than any happy ending has. Family lawyers might find these plots familiar:

• Wife forgave her husband, they became great parents, and lived happily ever after. Couples do sometimes reconcile by picking up the pieces and moving past their troubles.
• Wife didn’t forgive her husband. She kept the house, has primary custody of the kids, his child support payments, and periodic alimony for life.
• Husband forgave his wife, but went through with the divorce. He was designated Primary Residential Parent (PRP) in the child’s best interest. The court found her sexual behavior created an unhealthy environment for the child, yet she was granted supervised parenting time. (More about this later.)
• Husband didn’t forgive his wife. She was awarded transitional alimony to help her move into an apartment. They share joint legal decision-making. As the Alternate Residential Parent (ARP), she pays child support and helps fund the college trust.

Looking from the outside in, an extra-marital affair is tawdry grist for the rumor mill. In literature, divorce by adultery is practically a guaranteed best-seller. Perceptions are quite different when it’s personal, though. When it’s your marriage that has an interloper.

Weaving dark humor and comedic folly into a screenplay doesn’t change the fact that divorce is an emotional loss. Often a financial one, too. Adultery is the betrayal of intimacy. And betrayal that ends in divorce is a tragedy. Relationships suffer as the bonds between family members are damaged. Children are hurt. Neighbors gossip. Even today, in modern Tennessee, the stigma of adultery can cause lasting grief.

Adultery and Alimony in Tennessee

Understand that sexual intercourse with someone other than your spouse is adultery. Adultery is not a crime in Tennessee, but it is grounds for divorce. See T.C.A. § 36-3-701. Furthermore, the court treats cheating on a spouse as an act that must be proven and then dealt with accordingly – in alimony and with child custody. There is a punitive element to spousal support when allegations of adultery are proved.

During divorce proceedings, just dating someone else may be marital misconduct. Dating while separated may be marital misconduct, an alimony factor the judge will consider. This surprises many people, especially when spouses have been separated for months while divorce proceedings continue. See T.C.A. 36-5-121.

Dating discretely, although helpful, is seldom a solution given how ubiquitous social media is in daily life. People talk. Assume marital indiscretions will be noticed and could surface as proof of adultery or marital misconduct. For information on the impact an extramarital affair could have on alimony and custody, read about Dating While Separated.

Adultery and Child Custody in Tennessee

Because a parent’s adultery is an important factor in determining child custody, the court considers admissible evidence of infidelity. A parent’s judgment impacts the child’s best interests. A parent’s extramarital affair is indicative of poor judgment. A parent who dates or moves in with a significant other before the divorce decree is entered can really damage his or her custody case.

In cases of divorce by adultery, a parent’s misbehavior can result in legal decision-making and most parenting time going to the other spouse. Take this seriously. After the divorce, each parent’s relationship with the child will depend upon implementation of the permanent parenting plan.

Modifying Custody Orders Because of a Parent’s Sexual Conduct

What about custody modifications because of post-decree sexual conduct? Could a parent’s sex life provide sufficient basis for modified custody orders? Yes. With a request to change the parenting plan, the petitioner must prove by a preponderance of the evidence that there has been a material change of circumstance. See T.C.A. 36-6-101(a)(2)(B).

A material change of circumstance could be a parent’s failure to adhere to the parenting plan, or that the parenting plan is no longer in the child’s best interest. A parent’s sexcapades might fall into the latter category. Consider two Tennessee child custody modification cases.

• Cohabitation Alone Was Not a Material Change of Circumstances

Whatever the circumstances, the situation need not be one that involved any substantial risk of harm to the child. In Curtis v. Hill, 215 S.W.3d 836 (Tenn. Ct. App. 2006), the mother’s cohabitation, in and of itself, was not sufficient to be a material change of circumstances. (She was the PRP.) “We do not condone Ms. Curtis’s choice to cohabitate without benefit of marriage; but, standing alone, it clearly does not rise to the level of a material change in circumstances warranting change of custody.”

• Parent’s Sexual Indiscretions Showed Poor Judgment

In Adams v. Adams, No. W2008-002250COA-R2-CV (Tenn. Ct. App. Mar. 17, 2008), the court did find that the PRP’s sexual indiscretions crossed the line. A robust sex life cost the mother primary custody of her children. In addition to sex photos on her cell phone and an inappropriate home environment, there was “Mother’s decision to have a party with teenage males, who were closer in age to [daughter] than to Mother, demonstrated poor judgment and was properly considered by the trial court in assessing Mother’s behavior since the divorce.” The court named the children’s father the PRP, given the mother’s poor judgment.

Because the court must focus on the child’s best interest, either parent’s sexcapades could justify modified custody orders.

Divorce laws in Tennessee: Adultery.

Why Infidelity Makes for Painful Divorces

As with any taboo, an extramarital affair between protagonists is the stuff of great literature. Consider Hawthorne’s ‘Hester Prynne’ who, living in 1642 puritan Massachusetts, was branded an adulteress in The Scarlet Letter. Certainly, an author’s sympathetic or empathetic projections of the destruction laid by an extramarital affair make for some of the very best mental images. Reality shows and tear-jerkers with affair plots and subplots can be compelling. We get it – betrayal.

Case in point? Sandra Bullock and Jesse James, married in 2005, were in the initial stages of adopting a son when gossip spread of Jesse’s cheating. Divorce ended their “conflict of personalities” permanently in 2010. Bullock went through with the adoption as a single mother, then adopted a little girl in 2015.

Does it matter what kind of adultery it was? Should we care what led to the indiscretion that broke the ‘camel’s back’? In Psychology Today, Frank Smith Pittman, III, MD (deceased) discussed how affairs come in different forms because there are different types of infidelity. These are “Dr. Frank’s” four categories of infidelity:

1. Accidental Infidelity.

“Most first affairs are cases of accidental infidelity, unintended and uncharacteristic acts of carelessness that really did ‘just happen.’” Not surprisingly, certain situations make these accidents more likely to occur, such as alcohol consumption and frequent travel without the other spouse.

2. Romantic Infidelity.

These affairs are “so crazily stimulating that it’s like a drug.” The affair lifts the person out of depression, enabling him or her “to feel things again.” Those most likely to fall into a romantic affair are at a turning point in life. Unhappily married. A parent has died. A child has gone off to college. The person is going through a crisis in his or her life, but then meets Ms. or Mr. Wonderful. As Dr. Frank said, “wonderful people don’t screw around with married people.”

3. Marital Arrangements.

Taking a lover is how the spouse makes marriage tolerable. Affairs that remedy “marriages that won’t die and won’t recover.” The marriage is missing an important element of “warmth, sex, sanity, companionship, money.” The affair is a way of filling the void so the marriage can continue. “People averse to conflict might prefer such arrangements to therapy, or any other effort to actually solve the problems of the marriage.”

Among marital arrangements is the subcategory of philanderers. Although both sexes are capable of philandering, they often do so for different reasons. Men are still more likely to be philanderers and generally are “preoccupied with masculinity,” among other things. Female philanderers, by contrast, are more often “single women who mess around with married men.”

Another subcategory is the ‘spider woman’ whose pain is very raw. Having been betrayed by her unfaithful spouse, spider women is out for revenge.

4. Emotionally Retarded Men in Love.

No, this is not an attack on PC culture. In this sense, emotionally retarded men are constrained in their feelings. Their emotions are withheld for any number of reasons. They are numb. “Their brain chemistry gets depressed, but they don’t know how to feel it as depression.” The man who is emotionally retarded is isolated, unable to feel pleasure or pain in his marriage. A new woman comes along and snaps him out of it. When with her, it’s joy, excitement, and love. When away from the other woman, his married life is “stale and irritating.” The affair cannot work either because it, too, “would grow stale and irritating if she were around full time.”

Dr. Frank’s article in Psychology Today, “Beyond Betrayal: Life After Infidelity,” was published in 1993 and reviewed in 2016.

An extramarital affair could have substantial consequences in divorce, especially with alimony and child custody. Adultery is not a crime. But by the time settlement negotiations are finished, the adulterer may feel as though he or she has been prosecuted and sentenced. If adultery played a role in the break-up of your marriage, then talk to an experienced Tennessee divorce attorney.