What is adultery in Tennessee and does it really matter?

When I began practicing law in 1992, adultery was a big deal in divorce cases. Not so much anymore—at least not as a ground for divorce. It is still important in certain cases, though. In long term marriages where the parties are disparately situated financially, adultery can serve as a factor in whether alimony will be awarded. The biggest advantage to the innocent spouse is the tactical advantage gained by the guilty spouse’s desire to keep the extramarital dalliance from becoming public.

Adultery is defined as voluntary sexual intercourse between a married person and someone not the spouse of that married person. In Tennessee, adultery can be proven by circumstantial evidence as well as by direct evidence. For example, if the defendant is seen leaving a hotel room with a person of the opposite sex (or even the same sex) without explanation, then one could conclude the defendant had committed adultery. This is circumstantial evidence. If one walks into the house and finds his or her spouse engaged in the act of sex with another, this is considered direct evidence of adultery.

There are several defenses to adultery. The first is called recrimination and occurs when the spouse alleging adultery has also committed adultery. The second defense is referred to as condonation. The defense of condonation occurs when the innocent spouse, knowing of the adulterous conduct, takes the guilty spouse back and engages in intercourse. The final defense is connivance. This defense is based upon the knowledge and acquiescence by the innocent spouse in the adulterous spouses’ conduct.

Adultery is often held over the head of the guilty spouse to gain an advantage in a divorce case. Many times the guilty spouse would rather not have his or her conduct as part of a divorce case for the whole world to see. And yes, divorce cases are public record. The reluctance of the guilty party to be "outed" can result in a more favorable financial settlement for the innocent spouse in a divorce case.

There are several things to keep in mind when it comes to adultery in divorce. First, the adulterous conduct of a parent cannot form the basis of a denial of parenting time. In other words, unless the conduct directly affects the children, it cannot be used by the court when fashioning a custody arrangement. Second, having sexual intercourse with someone other than your spouse after separation is still adultery. Third, adultery has no bearing on the division of property in a divorce case.

Adultery is just one of sixteen grounds for divorce in Tennessee. However, it is the ground that causes the most anger and resentment. From a purely legal standpoint, adultery is no different than any other of the fault based grounds for divorce. Keeping that in mind will hopefully help squelch the emotions that seem to run high in cases involving adultery.