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

Tennessee divorce laws adultery and alimony: is adultery a crime, adultery and child custody, how does the state of Tennessee define adultery, lewd society, emotional affair.  Whether called cheating, adultery, or an extramarital affair, what can sexual relations with someone other than a spouse really cost? Adultery and child custody.

Adultery and Alimony Divorce Laws in Tennessee

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.”

Tennessee divorce laws adultery and alimony: the purpose of alimony law is no longer to punish or prevent inappropriate behavior, but rather to protect the weaker or financially less well off spouse.

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?

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.

Is there an adultery law in Tennessee? How does the state of Tennessee define adultery?

Tennessee law considers adultery to means sexual relations with anyone other than a spouse.  Some judges may include any sexual act.  While no strict definition is provided in Tennessee law, the question is evidence.  Video evidence is not required.  The sufficiency of evidence will depend on the circumstances.  In many cases, a party will admit to a sexual relationship and that will end the inquiry on the act itself.  In other cases, evidence of spending the night together may be enough.  Many judges will consider an admitted “emotional affair” to comprise inappropriate marital conduct.  In any event, once an intimate relationship is proven, the subject then usually turns to how much money was spent on the relationship and financial transactions between the spouse and other party such as gifts, loans, or holding money.  For more discussion on the relationship among adultery, grounds, and fault in Tennessee divorce law, see Alimony Law in Tennessee Divorce | Answers to FAQs.

Adultery and Child Custody in Tennessee

Adultery can impact child custody decisions.  Most judges disdain the unfaithful parent exposing the children to his or her lover.  But what if the cheating parent didn’t?  The faithful parent may still argue the other parent’s top priorities don’t include the children.  For more discussion, see Child Custody Laws in Tennessee Answers to FAQs.

Is adultery a crime in Tennessee?  Is adultery illegal?  Is it against the law to commit adultery?

No.  Adultery comprises grounds for divorce and is a listed legal factor for courts to determine alimony, but not property division.

What is an alienation of affection lawsuit?

You may sue your spouse’s paramour for damages resulting from the destruction of the marriage.  Tennessee does not recognize this as the legal basis for a lawsuit.  For more information, see Alienation of Affection – Criminal Conversation in North Carolina.

Are considerations different for the spouse paying alimony and the spouse receiving it? Can a cheating spouse get alimony?

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

Is there an adultery law in Tennessee? 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 alimony.  The rationale is that the spouse’s conduct should not be rewarded.

Spending money owned by both spouses on an extramarital relationship may violate Tennessee’s mandatory injunction 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.

Lewd Society in Tennessee Divorce Law and Other Defenses and Mitigating Circumstances

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.

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