You don’t have to prove marital misconduct to receive a divorce in Tennessee; the state offers the no-fault ground of irreconcilable differences. However, its statutes require that you and your spouse live apart for two years before you qualify for a no-fault divorce. Fault grounds don’t share the same restriction, which can make them an attractive option if your spouse has done something to end the marriage, such as committing adultery.
Adultery as Divorce Ground
When adultery occurs, and you use it as your divorce ground, it essentially waives any residency requirement for filing a petition. The law only requires that you live in Tennessee at the time your spouse strays. However, if you lived elsewhere when your spouse committed adultery, you’d have to establish residency in Tennessee for six months in order to file in the state. Technically, Tennessee’s statutes indicate that adultery is a divorce ground if either you or your spouse engages in an adulterous act.
Burden of Proof
If you’re filing on grounds that your spouse was unfaithful, the law in Tennessee says you must prove it. This can be tricky because Tennessee law does not allow you to photograph someone committing any act if he has a “reasonable expectation of privacy” at the time it occurred. The state also prohibits you from placing a GPS device on his car to determine that your spouse has met up with his paramour. However, you can hire a private investigator to photograph him with his paramour in public, and statements from witnesses are also admissible as evidence. You’ll probably need witnesses and documentation at the time of trial if your spouse contests your grounds.
Impact on Divorce Issues
Your spouse might contest your grounds because Tennessee allows judges to consider adultery when deciding issues of alimony. The law states that if your spouse earns more than you do, your standard of living after the divorce should not diminish because your spouse committed some wrongdoing, such as adultery, that ended your marriage. Judges may not include adultery as a factor when determining how to divide marital property, however.
If you’re the spouse who strayed, Tennessee law allows you some possible defenses to either contest the ground or mitigate its damage. If your spouse files for divorce, then immediately begins dating someone before your divorce is final, you can allege that she has committed adultery too. If she’s guilty of the same act, she loses the right to claim it as a divorce ground. If the two of you were intimate after she learned of your infidelity, Tennessee law considers this “condonation.” From a legal standpoint, she’s forgiven you. One of the more antiquated aspects of Tennessee’s divorce laws allows that if your spouse introduced you to “lewd society” that led you to loosen your morals, and you then committed adultery, you’re not to blame.
References & Resources
- The Law Offices of Scott Justice; Can You Date During Divorce?; April 2007
- FindLaw: Tennessee Legal Requirements for Divorce
- Andrew Fox, Attorney: Divorce and Legal Separation
- Ferrell Law Firm: Alimony
- The Law Office of Lawrence Ballew; How a Private Investigator Can Help Your Divorce; Lawrence Ballew; March 2010
- The Jones Law Firm: Defenses to Divorce
- Lawyers.com: Divorce in Tennessee (TN)
- Pixland/Pixland/Getty Images