Defenses to Divorce in Tennessee: Adulterous and Cruel but Without Fault

Tennessee divorce fault grounds: adultery, cruel and inhumane treatment, condonation, recrimination, insanity, inappropriate marital conduct in Tennessee divorce and defenses associated therewith.

When a spouse files for divorce in Tennessee, the opposing spouse is given the opportunity to raise an argument in his or her defense. These are called “affirmative defenses” because they admit that the alleged misconduct occurred. Affirmative defenses provide a valid reason that the spouse committed the misconduct. In other words, an affirmative defense is raised as a justification or excuse for marital wrongdoing. Tennessee recognizes affirmative defenses to both adultery and inappropriate marital conduct.

Defenses to Adultery in Tennessee

There are three affirmative defenses to adultery pursuant to the Tennessee statute — recrimination, condonation, and connivance.

Recrimination
Let’s suppose a wife engages in an extramarital affair. The husband finds out about the affair and files for divorce. The wife should raise an affirmative defense of recrimination if she can prove that the husband is also guilty of adultery. If recrimination is established, neither the husband nor the wife may use adultery as grounds for divorce. In this situation, one of the parties must find an alternate grounds for divorce before the court will grant a decree.

Condonation
As an example, the wife is in an extramarital affair, but the husband is not. The husband finds out about the affair and does not file for divorce. A number of years later, the husband files for divorce on the grounds of adultery. The wife should raise the affirmative defense of condonation. This defense is only valid if the husband knew the full extent of the wife’s adulterous activities and actually approved of the activities or forgave the wife. If the wife was conducting extramarital affairs with five other men but the husband only knew of one, the wife could not use condonation as a defense.

Connivance
Here, the hypothetical becomes slightly more scandalous. The wife engages in numerous extramarital affairs. The husband is monogamous. The husband files for divorce, alleging adultery. However, the husband neglects to mention in the divorce complaint that he was paid for his wife’s adulterous affairs. In this case, the wife should raise the affirmative defense of connivance, which is valid when the husband plays an active role in the wife’s prostitution. Connivance is presumed to be an affirmative defense for both men and women.

Defenses to Inappropriate Marital Conduct in Tennessee Divorce Law

There are two affirmative defenses to inappropriate marital conduct in Tennessee—insanity and justifiable cause.

Insanity
Let’s suppose a husband is verbally abusive to his wife. Ever since the wife’s second pregnancy, the husband refuses to be sexually intimate with the wife or even sleep in the same bedroom as the wife. The husband is manic depressive, suffers from multiple personality disorder, and was committed to a state-run mental facility for six months during the course of the marriage. Anxious from the husband’s verbal abuse and worried that it will soon escalate to physical abuse, the wife files for divorce on the grounds of inappropriate marital conduct. The husband should raise an affirmative defense of insanity. He will have to prove that he did not possess the mental capacity to understand his conduct or to control his actions. Although the insanity defense is not recognized by statute, it is considered valid by Tennessee courts.

Justifiable Cause
The wife stabs the husband repeatedly with a knife. In reaction, the husband pushes the wife and she falls down a flight of stairs. Both parties survive and the wife files for divorce, claiming the husband’s push constituted inappropriate marital conduct. The husband should raise an affirmative defense of justifiable cause. To use the justifiable cause defense, the husband must be able to prove the wife first tried to stab him. The husband must also be able to prove that the push was a reasonable reaction to the wife’s provocation.

If a party is unable raise one of these affirmative defenses, the court may find that party at-fault in the divorce. Fault is important because it is often considered by courts when determining alimony. If the parties do not agree to fault in the divorce, raising an affirmative defense could be essential to prevent a spouse from being unfairly found at fault.

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