Adultery

Adultery occurs when two people are intimate, and at least one of them is already married… to someone else. 

Moral repugnance aside, this is one extramarital dalliance that can have some fairly significant legal impacts on divorce. Especially in a state like Tennessee, which still allows fault-based divorce grounds

Whether you are the cheater in this situation, or the cheated upon, here’s what you need to know about adultery in Tennessee, and what Byrd Law can do to help you navigate this situation. 

 

What is Adultery?

Most of you already know what adultery is, but for those who need help, we’ll start with a definition… 

According to Tennessee law, adultery occurs whenever two individuals engage in sexual intercourse, and at least one of them is already married… to someone else. In addition, this copulation must be voluntary (otherwise, of course, it’s rape). 

Some people wonder if emotional affairs are considered adultery. While many individuals say yes, unfortunately, the law doesn’t agree. In Tennessee, an affair doesn’t meet the legal definition of adultery without physical intimacy. 

While adultery, itself, is not against the law, this misstep can certainly have an impact on certain areas of your divorce, especially if it is cited as your grounds when filing your complaint. 

 

Adultery Divorce Grounds

Grounds are essentially the reason you want to get divorced. This “why” is a required part of your divorce complaint in Tennessee, and will trigger either a “fault” or a “no fault” divorce process, depending on which you choose.

In a no-fault divorce, neither partner is held accountable for the marriage breakup—which, doesn’t mean there hasn’t been fault, it just means both parties are choosing to let it go. On the other hand, in an at-fault divorce, judges are allowed to consider the “guilt” of one party, and hold them accountable, accordingly. 

In Tennessee, there are eight at-fault divorce grounds; these include: 

  1. Impotence
  2. Bigamy
  3. Adultery
  4. Willful or malicious desertion
  5. Felony conviction 
  6. Attempted murder of the other spouse
  7. Substance abuse
  8. Cruel and inhumane treatment 

Of these eight, adultery is—by far—the most commonly cited grounds for an at-fault divorce. 

How Adultery Affects Divorce

While adultery isn’t illegal, that doesn’t mean it’s completely harmless, either. 

This is especially true when you consider that Tennessee is one of the few states that still allows for at-fault divorces. Meaning that adultery can have a very real influence on your breakup—and not in a good way. 

The impact of adultery is most commonly felt in these three areas of divorce: 

  1. Marital property division
  2. Child custody
  3. Spousal Support

Here’s a closer look.

1. Marital Property Division

In some states, adultery can have a negative impact on the division of marital property. This means that if a judge finds the evidence compelling, they have the power to award the injured spouse a larger share of marital property, as a kind of punishment to the guilty party. 

The logic behind this is that since the cheater was the one responsible for breaking the marriage contract, they should be the ones held accountable for the marriage’s failure. 

While it makes a certain sense, Tennessee follows the laws of Equitable Distribution, and, as such, Tennessee judges are not allowed to consider adultery when dividing up marital property—even in a fault-based divorce.

That being said, if someone spent marital property on their affair, then a judge can require them to repay those funds, before divvying up assets. And, depending on how long the affair lasted, that amount could end up being quite a lot.  

2. Child Custody

In Tennessee, all decisions about children are made according to the best interest of the child. At first blush, this might make it seem as though adultery wouldn’t impact child custody; however, that assumption wouldn’t quite be accurate. 

Depending on the circumstances, some judges might see an affair as evidence that a child isn’t a parent’s number one priority. This could be detrimental to custody, especially if the child was neglected during the affair, or if they were exposed to harm, as a result of it. (For example, if the child came into contact with drugs or alcohol during the affair.) 

In these situations, a judge might think twice before awarding you primary custody, or might limit your visitation, as a result. 

Keep in mind that even if you are legally separated, you are still technically married. Hence, any affair would still be seen as cheating (and thus, grounds for an at-fault divorce), even if you aren’t living in the same house. 

 

3. Spousal Support

Another area of divorce that can be impacted by adultery is spousal support. 

Spousal support (sometimes referred to as “alimony”) is similar to child support, in that it’s a series of regular payments made by one spouse to another, post-divorce. However, unlike child support, this money is intended to help a dependent spouse, rather than a child.

Depending on the circumstances, adultery may be enough to alter how a judge awards alimony—or whether they choose to award it at all. In some cases, a spouse who might have otherwise qualified for alimony, could be denied, if they committed adultery.  

However, cheating is not the only consideration in these cases. Alimony is intended to be a need-based award, and not a punishment for certain behavior. Hence, the existence of adultery won’t automatically warrant or eliminate alimony; rather, it’ll simply be one of many elements a judge takes into consideration.  

 

 Do You Have More Questions About Adultery in Tennessee?

Like with many things in divorce, it’s hard to predict exactly how adultery might affect a divorce. Often, these decisions will hinge on the opinions of whatever judge you get, and what kind of evidence they have for review. That’s why it’s so important to have a skilled family law attorney fighting at your side. 

If you have more questions about adultery in Tennessee, we want to hear from you. Call the Byrd Law team at (423) 304-6827, or contact us online, and together, we can figure out what course of action is right for you. 

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