Basics of Adultery Under Tennessee Law

What Constitutes Adultery in Tennessee

While adultery is recognized as a ground for annulment or divorce in Tennessee, the state law does not make a formal legal definition of adultery. As has been noted in other states, the term seems to have originally been somewhat legally ambiguous, referring to marital infidelity but not disclosing a specific act or acts which might be deemed adultery. Tennessee courts have generally interpreted adultery in more specific terms and in doing so have carried on the tradition of some other states.
As an example, these courts have specifically stated that to commit adultery a party must "have sexual intercourse with a person other than his or her spouse during the subsistence of the marriage." (Blackburn v. Blackburn, Tenn. Ct. App., No. 01A01-9808-CV-00455)
Another court, interpreting a statute against bigamy, recent noted that "thus, adultery is a form of sexual misconduct a) with a person other than one’s spouse b) occurring after marriage and/or before the dissolution of the marriage with the other spouse; and/or c) with a person with whom one has no lawful right to have sexual relations."
The courts of Tennessee have held that there can be no adultery where the offending parties were separated but legally married , where there was no substantial chance of reconciliation. In this case, the court, citing the Restatement (Second) of Conflict of Laws, notes that adultery is a ground for divorce in only about half of the states, about half of the states recognizing adultery as a cause of action for divorce if the parties are living together as husband and wife, and only about one-third of the states recognizing adultery "where proof of cohabitation is lacking but sexual intercourse is proved." (McGowan v. McGowan, Tenn. Ct. App., No. M2004-01305-COA-R3-CV)
Adultery, as the term is used in Tennessee law, is preferably understood in the classic legal sense which has generally applied in most states and jurisdictions. To suffer the legal consequences of adultery — the breakdown of the marriage — a party must demonstrate an act of sexual intercourse with someone other than the party’s spouse while still in a legally recognized marriage.

Effects of Adultery on Divorce

Impact of Adultery in Tennessee Divorce Proceedings
In Tennessee, the exact impact of adultery on divorce proceedings can vary. Every circumstance is different. While adultery may not be a "ground for divorce" (which would be true for most people), it can play a role in the division of debts and assets (marital property), custody of children, and spousal support (alimony).
Division of Assets and Debt
In Tennessee, courts will divide marital assets (and debts) equitably when a marriage is dissolved. If the adultery took place before the separation period, this could influence the outcome of how marital property (or debts) is divided. Even if adultery did occur, an asset may be awarded to another spouse if that spouse contributed to obtaining it and they should be awarded is based upon their contribution, not because of infidelity. In rare circumstances, adultery could influence how a particular debt may be divided (thus a particular asset awarded one party may be encumbered by a debt that is the responsibility of the other spouse).
Child Custody
Courts are focused on the best interests of the child when deciding what type of custody arrangement is appropriate. Though couples may have thought it is handled differently, Tennessee does not differentiate between types of relationships in this regard. Thus, if both parents have committed adultery, it is unlikely that either parent will be negatively impacted in regard to child custody. In some very rare circumstances where adultery is disregarded, but the adulterous relationship is detrimental or harmful to the children, this may be a relevant factor (although a determination of "harm" is based on the unusual trauma to the child’s emotional, social or moral development). Thus, a couple who participates in an extramarital relationship that is otherwise unrelated to drama that would adversely affect their family life, may not have a significant impact on a child custody determination. In Tennessee, parenting plans are based on "alternate residential parenting schedules" based upon several factors, including: the needs of the children (schooling and involvement), the existing custodial arrangements, the understanding of alternate parenting schedules and the ability to comply with them, the mental and physical capacity of the parents, the relationship of the parents, the environment where the child lives as well as the standard of living that the child has become accustomed, and a host of other factors that may come into play specific to your individual situation.
Alimony
Like child custody, the ensignation of alimony is at the discretion of the court. Regardless of the adultery, an award of alimony is based on the dependent spouse’s need and the ability of the other spouse to pay. Whether or not alimony is appropriate is based on several factors, including: the standard of living of the parties during the course of the marriage, the duration of the marriage, the circumstances related to certain facts such as health issues, the income and employment career of each party, the value of their respective property, the relative education and training of each party, the time necessary to acquire sufficient education or training for a party, how long it took the dependent spouse to make a sacrifice during the course of the marriage (that is, was the party denied an opportunity that is relevant now), how long the payment of alimony would last, tax consequences of alimony, and the mental condition of each party. Though it may not be the case, the fact that there was adultery may impact a court’s provision in the final order. A judge may feel it relevant to the award of alimony as it may show the character of a party to be hostile towards the dependent spouse (and may lower the findings on "self-sufficiency" while also increasing the award a court feels necessary and appropriate to make the dependent spouse "whole").

The Legal Ramifications of Adultery

In Tennessee, adultery is not a first degree crime. It is actually what is known as a Class A misdemeanor, which is generally punishable by less than one year in jail or large fines. Adultery in Tennessee does not usually carry any prison/sentence time, but it could result in some jail time if the spouse you cheated on goes after you for committing adultery under the law. It also could see you with larger fines as well.
In Tennessee, adultery could have administrative consequences in a civil court as well. It could mean that the spouse you did cheat on with may be entitled to assets or increase alimony/divorce payment that they would not have otherwise received.
Tennessee’s adultery laws actually fall under a category called "crimes against nature". The law essentially states that adultery is a crime for which the convicted can be sentenced to a fine, but not to prison. In other words, if you get charged with adultery, then are found guilty, you can be fined. However, adultery is not a violent crime and does not usually result in jail time or jail sentences.
In short, adultery is technically a crime, but it is one of the more serious crimes that people sometimes get away with. Rest assured, however, that being unfaithful will have quite the impact on family law cases, so it is always better to just avoid cheating on your spouse if possible.

How Adultery is Proven in Court

Burden of Proof and Types of Adultery Evidence in Tennessee
When proceedings related to divorce are filed in a Tennessee court, the burden of proof rests on the spouse who makes allegations of adultery. To prove that the other party has committed adultery, you must present evidence that the individual engaged in sexual relations with a person other than your spouse. Although proof can be made via direct or circumstantial evidence, circumstantial evidence is most commonly relied on in adultery cases.
For circumstantial evidence to exist in an adultery case, you must have substantive proof that the actions of the offending spouse proved a point. The circumstantial evidence must be convincing enough to allow the judge to draw a reasonable inference of what may have happened, rather than requiring direct proof of guilt. In other words, such evidence may lead to the conclusion that adultery occurred. Existing case law in Tennessee states that "the circumstances justifying the inference must be such as to reasonably exclude every other hypothesis than that of infidelity of one of the parties."
In weighing circumstantial evidence of adultery, the judge will look for factors such as whether the parties involved displayed any affection for each other in public, whether the accused spouse exhibited any signs of deception or guilt, and whether the parties involved engaged in any other activities that could raise suspicion. Examples of the types of activities that could lead to circumstantial evidence in an adultery case include the following:
Just as direct evidence of a spouse’s adultery can be compelling during divorce proceedings, so too can good circumstantial evidence. However, the burden of proof is on the accusing party. If you believe that your spouse committed adultery, you will need to examine any potential evidence that you have and determine whether it provides enough proof to convince the court of the same.

The Wife’s Rights After Adultery

The impact of adultery on spousal rights such as inheritance rights, or community property rights during a pending divorce, or after a divorce is final can be significant. With respect to the effect of adultery during a divorce, the Court may consider adultery in making a classification of marital and non-marital property. Marital property is generally all property acquired from the date of marriage until the date of an effective legal separation or divorce, except for: (1) property acquired by gift, bequest, devise, or descent; (2) property acquired in exchange for separate property; (3) property acquired by a spouse after the effective date of a legal separation; (4) income from separate property during the marriage; (5) property acquired by a spouse following the entry of a final decree of divorce; (6) income from or appreciation in the value of property brought into the marriage by a spouse; (7) income from an asset that is excluded as separate property; and (8) any decrease in value of separate property resulting from depreciation during the marriage. Moreover, the Court in an appropriate case may award or assign as alimony in solido damages for any impairment of the marital estate by either spouse through dissipation of assets, waste or destruction of marital property, in which matters the fence-off rectitude of either spouse will only be a partial defense, if any. It is certainly arguable that adultery is one such factor.
"Dissipation" refers to the application of funds toward a non-marital purpose at a time when the marriage relationship is no longer viable . Such "funds" include monies, securities, or properties received during the marriage. The doctrine of dissipation was designed to prevent a spouse from wasting or destroying marital property, and most importantly in our opinion, was not intended to penalize marital infidelity. For example, in Touchstone v. Touchstone, No. M2003-01122-COA-R3-CV, 2004 WL 1825276 at *14 (Tenn. Ct. App. Aug. 13, 2004) (perm. app. denied Oct. 25, 2004), the Court imposed 51% fault on the wife who had been unfaithful, but was only awarded 49% of the marital estate because of her dissipation of the same. However, in Touchstone, the Court attributed marital funds expended by the Wife for her personal benefit even though she had not dissipated marital funds for a marital purpose. Id. Finding that "the former wife failed to collect on her business investment at any time," the Appeals Court upheld the trial court’s award of 52% to the former husband and 48% to the former wife. Id.
Adultery does not have any direct effect on rights to inheritance, which are governed by the laws of intestacy in Tennessee. Tenn. Code Ann § 31-2-104 (2012). However, if a decedent makes a final complete distribution to a beneficiary, then any later divorce will not terminate the right of the beneficiary to inherit property from the decedent’s estate if the divorce becomes final after the decedent’s death. Tenn. Code Ann § 31-1-106 (2012) (previously Tenn. Code Ann § 32-2-102(a)) Harwell v. Harwell, No. 04A01-0107-CH-00310, 2001 WL 740804 at *3 (Tenn. Ct. App. July 6, 2001).

Whether a Service Member Committed Adultery

Adultery is also addressed in the context of military divorces, allowing additional protections that civilians are not granted. With limited scope, the U.C.M.J. provides service members protection against allegations of adultery. Members are protected against accusations when the spouse became involved with another prior to the marriage. Retaliation against a spouse by the military member can be met with punishment under the U.C.M.J. for adultery.
In many instances, the non-military spouse or dependent spouse is clueless when their military member or spouse has had an affair or is currently cheating as they are away from prying eyes of family and friends. The U.C.M.J., Article 134 provides that "any other conduct of a nature to bring discredit upon the armed forces" is a crime punishable by Court Martial, and adultery is but one example of such discreditable conduct.
Concerning the issue of adultery, Article 134 of the U.C.M.J., specifically Article 134 (1) states:
That the said [herein before named] did, at or near . . . [place], on or about . . . [date], commit adultery with [name of person with whom charged had sexual intercourse]. In that he [here state the manner, acts, circumstances, etc., constituting the offense in like manner as in civilian cases], and that such adultery was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.
Defined as sexual relations between a service member and a person for whom the service member is not married-adultery is a crime unless the service member can show that he/she did not have the ability to maintain sexual relations with a spouse while away from home (Africa) and the court will closely scrutinize the facts and circumstances. Adultery is never a crime punishable by death although it is a serious violation of the Uniform Code of Military Justice and carries punishment ranging from a punitive letter to dishonorable discharge with hard labor and confinement.

Historical Background and Legal Revisions

Historically, the laws concerning adultery in Tennessee have been stringent, much like those in many other states. The state constitution from 1870 even facilitates divorce proceedings due to adultery or bigamy. For many years, identifying adultery was a point-centric task, where the focus was on the act of sexual relations outside the marriage rather than considering the emotional and psychological dimensions. This distinction has evolved with changes in the law that permit no-fault divorce, but mating still provides a basis for fault-based divorce and may be utilized in settlements.
The most noteworthy change in the legal landscape relative to adultery in Tennessee comes not necessarily from a legislative standpoint but rather from social reforms. More lenient attitudes toward sexual promiscuity and infidelity have recently emerged, causing a theoretical shift in how understanding should be applied to adultery . Many divorcing parties consider separation a natural and fundamental outcome of a marriage gone awry. As a result, parties are more sympathetic to the idea that both spouses may have committed adultery.
This change in social attitudes also directly reflects in the case law. A few decades ago, most Tennessee cases made it clear that adultery with an accomplice may be considered grounds for divorce. The doctrine – though no longer determinative – primarily focused on the actions of one spouse. More recently, however, courts are more open to competing explanations for adultery.
Tennessee courts are, in general, willing to give the benefit of the doubt to the defendant spouse who has been accused of adultery. In short, what were previously determinative elements of adultery cases are merely considered while analyzing the facts of the case.