How Does Infidelity Impact Alimony in Tennessee Divorce Law?

Wondering how adultery or infidelity might impact Tennessee alimony in your divorce? Cheating on a spouse, even dating during the divorce, can influence the amount of spousal support awarded by the court.

E. Hopper’s Nighthawks (1942). How does infidelity impact alimony in Tennessee divorce law?

For many parties, a great deal of uncertainty surrounds the issue of alimony – what type, how much, and for how long. One might think, mistakenly, that spousal support is based entirely on resources and need using calculations similar to those applied to child support. However, the process for determining alimony bears little resemblance to that of child support. For one, there are no alimony guidelines to follow or court-approved worksheets to use. Instead, there are numerous statutory factors for the court’s consideration. Adding to the parties’ anxiety, alimony is not automatically awarded in every Tennessee divorce or legal separation.

Judicial Discretion in Alimony Awards

When alimony is sought in a divorce, the specific facts and circumstances raised in the case will be examined. But with a good deal of discretion placed in the hands of the judge. Judicial discretion encompasses the weighing of admissible evidence presented for or against a particular alimony factor, and ranking the relative importance of the factors as applied to the case at hand. Adding another layer of unpredictability, judges can and do interpret laws differently. Therefore, you should always seek competent legal advice about your specific situation from a licensed Tennessee alimony lawyer.

Factors Considered in Deciding Spousal Support

With alimony, the court examines all relevant factors in addition to those enumerated in T.C.A. § 36-5-121. Certainly, the economically disadvantaged spouse’s need for financial support and the advantaged spouse’s ability to pay it are essential factors to a determination of alimony. Regarding the impact of infidelity on spousal support, though, the court may consider the relative fault of the spouses – that is, who is more blameworthy.

If adultery is an issue in your divorce, take a moment to read:

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

Does It Matter Who Had the Adulterous Relationship?

The judge’s decision to award a certain amount of alimony may be influenced by a spouse’s adultery. Two Tennessee cases are pertinent to this discussion. First, if the obligor-spouse was the cheater, then he may be ordered to pay more for having “shattered” the marriage. The innocent party should not suffer an inferior economic situation because of the other spouse’s adultery. Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988).

Alimony is not to be used as financial retribution against the obligor, however. Although the parties’ relative fault is a factor for the judge to consider, an award of alimony cannot be punitive despite the obligor-spouse’s infidelity. But the amount of “alimony may be reduced due to a spouse’s misconduct.” Tait v. Tait, 207 S.W.3d 270 (Tenn. Ct. App. 2006). Hence, it is the unfaithful recipient-spouse who may suffer more as a consequence, by being awarded the minimum. The amount may be adjusted for fault, but a denial of alimony because of infidelity is unlikely when the law permits maintenance under the circumstances.

Which party engaged in an extramarital relationship can make a difference, then, in the judge’s decision on the amount of alimony to be awarded. Consider the following example:

Say, for instance, that Lucille is a stay-at-home mom who engaged in an extramarital affair that lasted two years. Having caught her in the act, husband Richard soon files for divorce on the grounds of adultery. Lucille seeks periodic alimony because she is the economically disadvantaged spouse. During divorce proceedings, it is established that Lucille’s economic need for alimony is $2,500 per month, an amount Richard can afford to pay. The court in its discretion, however, could reduce the award because Lucille’s actions were deliberate and undermined the marriage contract. Her marital fault could result in a diminished award, regardless of her economic need. While Richard, the innocent spouse, has less alimony to pay. Needless to say, for the innocent obligor-spouse, the financial incentive to establish the other party’s marital fault can be substantial.

Dating During Divorce

What happens if infidelity begins during the divorce, while the parties are separated? That the divorce is pending does not excuse a spouse from adulterous behavior. Even dating could cause problems if the divorce is not yet final.

Consider this twist on the previous Tennessee example:  While the parties are separated, but before their divorce is final, Richard starts dating. He finds a special someone and decides to move in with her. Meanwhile, Lucille continues to reside in their Memphis home with their two young children. Richard’s actions may not seem as morally egregious as Lucille’s, but he is still violating the marriage contract by engaging in an extramarital relationship. Doing so could cut against him in a decision on the amount of alimony Lucille will be awarded. Additionally, the judge may decide that Richard can afford to pay more given that he’s now sharing living expenses with another adult. The judge could also decide that Richard’s and Lucille’s adulterous actions are a wash, with no impact on the amount Lucille should receive.

What Is the Prudent Course?

What may be prudent is not always practicable. But if at all possible, do not date while the divorce is pending even though you and your spouse are separated. Because no one can predict with 100% certainty how a judge will rule in a given case, it is best to behave as a married person until the divorce is final.

Marital Waste or Dissipation of Marital Assets

Extramarital affairs frequently cause the depletion of marital resources as gifts are lavished on the paramour. When spouses point fingers at each other, each guilty of adultery, the marital assets they wasted can also instigate an adjusted alimony award. But that’s not all.

When marital funds are spent in a way that is detrimental to the marriage (such as an extramarital affair), then there is an issue of waste and the dissipation of marital assets which may affect the division of property in the divorce. After the divorce is filed, continued spending by the errant spouse on a paramour can violate the mandatory automatic injunction. T.C.A. § 36-4-106(d).

The injunction prohibits either spouse 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” while the divorce is ongoing. When that little bauble or fur coat for a “friend” was paid for with marital funds, such as wages earned during the marriage, then that purchase may violate the injunction and result in an action for contempt.

Taking the Guesswork Out of Alimony with an MDA

In Tennessee, a marital dissolution agreement (MDA) is the divorce settlement containing the couple’s written agreement as to the grounds for their divorce, property and debt division, and the type, amount, duration, and termination of alimony, among other things. By negotiating with the assistance of their divorce attorneys, the parties may reach an agreement on alimony. Doing so avoids uncertainty. For more information about MDAs, take a moment to read about TN Divorce Settlement | Marital Dissolution Agreement or “MDA.”

Alimony Lawyer in Memphis TN

To learn more, read Tennessee Alimony Law in Divorce | Answers to FAQs. Check out The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know for an informative discussion on alimony, available on Amazon and Kindle. Also, for legal updates, news, analysis, and commentary, see our Tennessee Family Law Blog and its Alimony category. A Memphis divorce lawyer from the Miles Mason Family Law Group can help. To schedule your confidential consultation, call us today at (901) 683-1850.