What Is Considered Inappropriate Marital Conduct?

The single most-alleged ground for divorce based upon a spouse’s fault is inappropriate marital conduct. In Tennessee, inappropriate marital conduct means a spouse has caused pain, anguish or distress to the other party and rendered continued cohabitation improper, unendurable, intolerable, or unacceptable. In other states, marital misconduct can be the equivalent of inappropriate marital conduct.

What is considered inappropriate marital conduct in Tennessee? What is an example of inappropriate marital conduct in Tennessee?

T.C.A. Section 36-4-101 | Inappropriate Marital Conduct Definition

Let’s start with the legal definition of inappropriate marital conduct in T.C.A. § 36-4-101(a)(11), as follows:

The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in the pleadings as inappropriate marital conduct…” [Emphasis added.]

The statutory terms “cruel” and “inhuman” imply a degree of hostility that does not always exist when a spouse files for divorce. Not every break-up is, or should be, tawdry tabloid material. Although the legal meaning is the same, courts often refer to this divorce ground as “inappropriate marital conduct” in an effort to de-scandalize the proceedings. What is an example of inappropriate marital conduct in Tennessee? The range of marital conduct considered to be “inappropriate” is expansive. As discussed below, the cause of an innocent spouse’s suffering can vary from verbal abuse to physical harm, from extramarital affair to felony offense, from excessive sex to abnormal sex, and more.

Evidence of marital misconduct at trial is necessary to prove allegations against a spouse which, when true, make continued cohabitation impossible. Because one or both spouses’ misbehavior amounts to cruel and inhuman treatment, their living together becomes too difficult. Therefore, the court should dissolve the marriage, putting an end to the parties’ cohabitation.

What is Considered Marital Misconduct?

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Grounds for Divorce in TN: Inappropriate Marital Conduct, Irreconcilable Differences, Adultery (https://youtube.com/watch?v=EM6iF0kA7Sw)

The faces of inappropriate marital conduct are many with each intentional act eroding marital harmony. Pushed beyond the tipping-point, the marriage becomes unsustainable and unlivable for at least one spouse. Do understand that evidence of marital misconduct may be directed both ways in a contested divorce with each spouse pulling arrows from the quiver. What is considered to be inappropriate marital conduct will depend upon the circumstances and alleged behavior. The following cases illustrate how allegations of cruel and inhuman treatment actually play out in court.

Adultery and Infidelity

Although adultery is a ground for divorce in T.C.A. § 36-4-101(a)(3), an extramarital affair is also considered to be inappropriate marital conduct in T.C.A. § 36-4-101(a)(11). An experienced divorce attorney will develop a legal strategy that utilizes the evidence to the client’s greatest advantage. But is there sufficient evidence to carry the burden of proving actual adulterous conduct by a spouse? Consider the following situation.

At trial, lawfully obtained evidence of a spouse’s extramarital affair may be insufficient to prove adultery, yet sufficient to carry the burden of proving infidelity as inappropriate marital conduct. (With the former, even with a licensed private investigator attempting to capture photographs of the errant spouse having sex with a paramour, admissible evidence of adultery may not be obtainable.) When an act of adultery is not provable, consider an inappropriate marital conduct divorce.

By contrast, an allegation of adultery as inappropriate marital misconduct may be proven with circumstantial evidence of an extramarital affair or fling. For instance, by offering the accused spouse’s credit card statements showing expensive gifts and clothes purchases, hotel and resort stays, and high-end restaurant meals for two. By offering telephone records showing numerous calls between the lovers over a period of many months. In other words, it may be easier to prove infidelity as inappropriate marital conduct than it is to prove adultery as a separate ground for divorce. Certainly, it was the same behavior that destabilized the marriage and destroyed harmony in the home.

In the case of Grant v. Grant, the husband filed his complaint for irreconcilable differences divorce, a no-fault ground for dissolution in Tennessee law. The wife answered and counterclaimed, however, alleging husband’s inappropriate marital conduct. She was granted a divorce after the trial judge found husband was involved in an adulterous relationship. Grant v. Grant, M2014-01835-COA-R3-CV (Tenn. Ct. App. May 12, 2016).

In Sibley v. Sibley, the wife filed a complaint for legal separation, but orally amended it to seek divorce. As the husband had already counterclaimed, she was granted an inappropriate marital conduct divorce based upon his infidelity. Sibley v. Sibley, M2015-01795-COA-R2-CV (Tenn. Ct. App. March 21, 2017).

In Santee v. Santee, the husband was awarded a divorce on the ground of inappropriate marital conduct wherein the wife acknowledged having an adulterous relationship. Santee v. Santee, E2016-02535-COA-R3-CV (Tenn. Ct. App. Nov. 14, 2017).

Marital Misconduct

In Tatum v. Tatum, both parties were granted divorce for inappropriate marital conduct. Tatum v. Tatum, E2013-02462-COA-R3-CV (Tenn. Ct. App. October 28, 2014). The wife filed her complaint for divorce on grounds of husband’s adulterous inappropriate marital conduct with irreconcilable differences as alternate grounds. The husband denied wrongdoing and sought a divorce based upon his wife’s “physical and mental abuse” of him on a specified day. He alleged irreconcilable differences, too, as an alternative ground (no-fault divorce). Take a closer look.

The wife testified as to husband’s violent temper. She described several instances of his physically abusing her and the children during their 24-year marriage. Phone records exposed excessive communications between the husband and a married woman (“Ms. C.”) with whom, the wife alleged, husband was having an affair.

When his wife confronted him at home, he admitted to an inappropriate relationship with Ms. C., but then accused his wife of being unfaithful. She slapped him and he responded by pushing her to the sofa. This was followed by a 911 call to police. The officer testified that both spouses has sustained minor injuries as a result of a domestic situation, but because the primary aggressor was indeterminable, neither was arrested. The husband left voluntarily while the officer was present at the residence.

At trial, the husband testified that his relationship with Ms. C. was not adulterous, that she was just a friend. However, he admitted his communications with Ms. C. were excessive and detrimental to his marriage. He further testified that his wife was manipulating and “controlling throughout the marriage and that she refused to coexist with his side of the family.” He denied abusing her or the children. On the day of the domestic altercation, he said she slapped him twice; he then grabbed her and slammed her onto the couch which may have hurt her. He denied striking her and said she kicked him and resumed yelling as soon as he released her.

The trial court found the spouses equally guilty of inappropriate marital conduct; affirmed on appeal. The wife was found guilty for slapping her husband as he was only attempting to restrain her. Husband was found guilty given his admission to having had excessive communications with Ms. C.

Other acts that Tennessee courts have deemed to constitute inappropriate marital misconduct include the failure to provide a home and clothing, notifying merchants not to extend credit to the other spouse, and giving attention to persons of the opposite sex. If a husband is unable to prove adultery, but can prove his wife traveled, dined, and slept in motel rooms with another man on a repeated basis, then the husband could successfully allege inappropriate marital conduct as the ground for divorce. And vice versa.

Spouse Charged with Felony Crime

Felony conviction is a ground for divorce in T.C.A. § 36-4-101(a)(6), which presumes he or she has been tried, sentenced, and incarcerated. Why wait until the other spouse is sentenced before filing for divorce? Does the innocent spouse have any options if the other spouse is charged with a felony, but has not been convicted yet? Not necessarily. A felony charge may also be ground for inappropriate marital conduct divorce as cruel and inhuman behavior.

Such inappropriate conduct renders cohabitation unsafe and improper and exists when “either spouse has engaged in ‘a course of conduct which (1) caused pain, anguish or distress to the other party and (2) rendered continued cohabitation ‘improper,’ ‘unendurable,’ ‘intolerable,’ or ‘unacceptable.’” Watt v. Watt, M2014-02565-COA-R3-CV (Tenn. Ct. App. April 27, 2016); citing Chaffin v. Ellis, 211 S.W.3d 264, 289 (Tenn. Ct. App. 2006). The main question is whether or not the spouse “engaged in inappropriate marital conduct during the marriage, not whether he or she was convicted of a crime for engaging in that conduct.”

In Watt v. Watt, the wife (age 69) filed for divorce after learning of felony charges against her husband (age 74) for the rape of a four-year-old child. The wife was granted her divorce on husband’s inappropriate marital conduct. (Husband’s counter-complaint alleging inappropriate marital conduct by the wife was dismissed.) Ultimately unsuccessful, husband appealed the divorce despite being convicted on three counts of child rape and three counts of aggravated sexual battery of a child under the age of 13, all felonies, while the divorce was pending. Enough said.

Verbal Abuse, Emotional Abuse, and Mental Abuse

The parties can stipulate to a spouse’s guilt as inappropriate marital conduct. In a Shelby County case, the wife filed her complaint for divorce alleging husband’s inappropriate marital conduct. Long v. Long, 02A01-9504-CH-00135 (Tenn. Ct. App. Feb. 4, 1997). Before trial, the spouses’ stipulated to husband’s guilt. And it was because of that stipulation to marital misconduct that husband appealed the special master’s findings of fault as inapplicable against husband. The special master had considered the wife’s testimony regarding her husband’s physical abuse in addition to his public emotional abuse, ongoing adulterous relationship, and secreting or dissipating marital assets.

The Court of Appeals held husband’s stipulation argument was without merit. The husband failed to follow appellate court procedure and, instead, alleged facts without citation to the trial record. (An irreversible mistake, one that would not have occurred had he obtained adequate attorney representation.) Stipulations do not erase a spouse’s history of marital misconduct when alimony, property division, and other key matters are determined in the divorce.

Verbal abuse is considered inappropriate marital conduct if it is persistent and affects the innocent spouse’s mental or physical health. Instances of verbal abuse include false charges of sexual abuse of children, false accusations of adultery, false accusations of incest, and threatening telephone calls. The use of profanity toward the spouse has been recognized as verbal abuse, too. As when, for example, a spouse who incessantly nags her husband about buying fine jewelry and an expensive wardrobe which he cannot afford. When he refuses, she calls him a “penny-pinching son-of-a-bitch” along with other humiliating expletives in the presence of family and friends. A Tennessee court would consider the wife’s actions to be inappropriate marital conduct.

Domestic Violence, Physical Abuse, Threats of Spousal Abuse

Physical abuse and threats of abuse are clear instances of inappropriate marital conduct. An individual who causes unnecessary physical pain and suffering to his or her spouse may be found guilty of inappropriate marital conduct. Examples of physical abuse include brow-beating and bullying, and holding a gun on the spouse.

The Supreme Court of Tennessee has even recognized abnormal sex as a type of inappropriate marital conduct. Excessive and unwanted sexual intercourse when the spouse is in delicate health constitutes cruel and inhuman treatment. Conversely, a spouse’s refusal to engage in physical intimacy has also been considered by Tennessee courts in determining whether marital conduct was inappropriate.

Abnormal Sex, Refusing Sex, and Excessive Sex

Allegations of domestic violence or spousal abuse may also form the basis for inappropriate marital conduct. In Roedel v. Roedel, the trial court was held to have erred in not granting wife a divorce. Roedel v. Roedel, W2003-02972-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2005). The appeals court held she had carried the burden of proving husband’s inappropriate marital conduct with her testimony as corroborated by her parents’ testimony.

The wife filed for irreconcilable differences divorce and husband’s inappropriate marital conduct. Both parties were under orders of protection for a full year requiring they each “refrain from ‘committing acts of violence [on] the property of the other’ and from ‘stalking the other…’” Both orders provided for arrest upon violation without need of a warrant.

The husband denied any inappropriate marital conduct in his answer, alleged wife’s adultery, and claimed her misconduct was justification for his (of which the wife complained). The Shelby County trial court dismissed the wife’s complaint on finding she failed to carry the burden of proof. She prevailed on appeal, though.

Yes, she was engaged in an extra-marital affair and, yes, it contributed to the breakdown of the marriage. However, she did carry the burden of proof and, thus, was entitled to the divorce which the Court of Appeals granted.

Marital Misconduct Examples

The wife’s trial testimony included a statement that the husband raped her, physically abused her, broke her finger, and was abusive to her in front of the minor children. Although the husband’s testimony painted a much different picture, the wife’s testimony was corroborated by witness testimony from her stepfather and mother.

Wife’s parents as witnesses testified to the following:

That the husband made light of forcing non-consensual sex on his wife, admitted to forcing himself on her, but felt he was entitled to do so as her husband;
That the wife was observed with bruises, black eye, and bruising inside her legs;
That the husband was observed emotionally abusing his wife;
That the husband “beat holes in the door [and wall] … pulled her hair out of her head”;
That the husband had broken his hand acting out his anger at his wife;
That the husband would not speak to his wife for days when he got mad at her;
That husband was observed being physically and verbally abusive to the children; and
That the husband had torn the clothes and underwear off his wife.

At trial, the husband offered only denials without any supporting evidence or corroborating witness testimony supporting his version of events.

The rule is that a divorce should be granted “whenever there is evidence of continued misconduct by one or both spouses that makes continued cohabitation unacceptable.” Citing Earls v. Earls, 42 S.W.3d 877 (Tenn. Ct. App. 2000). A preponderance of the evidence supports a finding of inappropriate marital conduct rendering cohabitation unacceptable. The wife carried the requisite burden of proof in that the husband admitted to his adultery early in the marriage and to it being the ultimate cause of the breakdown of their marriage. That pending trial the judge intervened, entering an order of protection and restricted visitation to prevent further violence. And lastly, witness testimony corroborated the wife’s story.

Irreconcilable Differences and Inappropriate Marital Conduct

If the parties agree to all terms of a divorce, Tennessee courts may grant a divorce based on irreconcilable differences. If the parties do not agree, when a ground for divorce listed in T.C.A. § 36-4-101(a) is proven, then the court can grant divorce to the party less at fault. If both spouses are entitled to divorce, then the judge can declare them divorced rather than awarding divorce to one spouse over the other. Is a determination of fault really so important in Tennessee divorce? Yes, it is. First, when attempting to arrive at an acceptable Marital Dissolution Agreement (MDA), the existence of one or both spouses’ marital misconduct can have a substantial impact on negotiations over the division of property, provision of alimony, and payment of additional child support, among other things. Second, the judge in a divorce has substantial discretion, especially in awarding alimony to a spouse. And third, the relative fault of the spouses is a statutory factor to be considered by the judge when determining alimony. See T.C.A. § 36-5-121(i)(11).

Affirmative Defense to Inappropriate Marital Conduct

An accused spouse may raise an affirmative defense sufficient to release the fault from the guilty behavior. (Affirmative defenses must actually be asserted by the party accused of misconduct; affirmative defenses are not automatic.) When a spouse accused of inappropriate marital conduct offers an affirmative defense, he or she admits to the problematic behavior, but then offers an excuse or justification for it. That is to say, there was a good reason for why the accused spouse committed the misconduct.

More specifically, an affirmative defense to inappropriate marital conduct is only allowed for insanity or justifiable cause. Asserting the insanity defense requires proof that the guilty spouse did not possess the mental capacity to understand or control his or her own conduct. The guilty spouse who asserts the justifiable cause defense must prove that his or her own act or behavior was a reasonable reaction to the circumstances or provocation. For further discussion and examples, read Defenses to Divorce in Tennessee: Adulterous and Cruel But Without Fault.

Grounds for Divorce in Tennessee

Even if the court grants a divorce based upon one of these types of misconduct, the judge may still choose not to weigh the conduct heavily when determining fault. The court’s decision will depend largely upon the type of the spouse’s misconduct and the severity and persistence of that behavior. If the spouse accused of committing the bad act raised an affirmative defense to that conduct and provided persuasive evidence, then the judge could release him or her from fault. In Tennessee, an attorney would be expected to advise a client on the pros and cons of alleging irreconcilable differences as an alternative ground for Tennessee divorce. Doing so would provide a fall-back position should admissible evidence of the other spouse’s marital fault not carry enough weight with the judge to establish inappropriate marital conduct.

Inappropriate marital conduct may also form the basis for a separate maintenance action. Strategically, specific facts and circumstances matter considerably when attempting to prove the alleged inappropriate marital conduct actually occurred. Talk to an attorney. Learn what options are available and reasonable, all things considered. Then decide whether a different allegation would be more suitable to the facts of the case.

What Is Considered Inappropriate Marital Conduct?