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My Spouse Cheated On Me — Does That Impact My Divorce Case?

The Impact of Infidelity

Learning that your spouse is having an extramarital affair can be devastating and leave you wondering what you should do to move forward. Seeking divorce is an option, and knowing how adultery could impact your case is important. Here is what you should know about adultery and divorce in Tennessee.

Adultery’s Role in Divorce

Tennessee Code Annotated 36-4-101 (3) lists adultery as one of the grounds for divorce in Tennessee; adultery is defined as extramarital sexual intercourse. It is often very difficult to prove that a spouse engaged in extramarital intercourse and, therefore, an experienced divorce attorney will plead “inappropriate marital conduct” as an alternate ground for divorce when there is not direct evidence of actual adultery.

Adultery IS inappropriate marital conduct and proving inappropriate marital conduct is sometimes much easier because we can use circumstantial evidence rather than direct evidence.

If you choose to file for divorce on the grounds of adultery, you must be able to prove that your spouse actually engaged in intercourse with someone other than you without your permission. Mere suspicion or circumstances of suspicion will not justify a divorce on the grounds of adultery. It is important to consult with an experienced divorce attorney to help you decide whether or not you should file for divorce on the grounds of adultery.

The Impact of Adultery on Divorce

In Tennessee, adultery can have an impact on certain aspects of your divorce, such as alimony, custody, and parenting plans, but it should have little to no impact on the division of marital assets.

When determining any potential alimony award, a court should consider the factors listed in Tennessee Code Annotated 35-5-121, one of which is the relative fault of the parties. A divorce granted on the grounds of adultery is a divorce granted on “fault”; the spouse who committed adultery is at “fault” in the divorce. The court does not have to consider fault when awarding alimony, as the statute states that the court should only consider fault “in cases where the court, in its discretion, deems it appropriate to do so.” Fault is just a minor factor to be considered in awarding alimony.

You may be surprised to learn that many judges do not want to hear about or consider fault in divorce cases, including adultery. Experienced divorce attorneys who have tried divorce cases before the courts know that many judges prefer that parties stipulate grounds for divorce and avoid lengthy hearings on grounds, such as adultery.

In some circumstances, adultery can have an impact on parenting and custody decisions made by a court. If you have a situation wherein a spouse is absent from home or away from the family much of the time as a result of spending time with a paramour instead of with the family, the court is going to consider this when deciding which parent is the primary caregiver of the children. Tennessee Code Annotated 36-6-106 lists several factors a court should consider in determining child custody and parenting plans.

Furthermore, the court will look at the love, affection, and emotional ties existing between the parents and the child in determining which parent has the closest relationship with the child. It will be difficult in most situations to determine that a parent who chooses to spend time with a paramour rather than a child has stronger emotional ties to the child than the parent who is with the child more. Parenting and custody cases are factually driven, and the courts can consider any facts which show it is in a child’s best interest to live primarily with one parent or the other.

Tennessee law places great emphasis on the child’s best interest in a parenting plan and custody case. If adultery is a factor in a divorce, then the potential impact the adultery has had on a child may be taken into consideration when the court makes custody and parenting plan decisions.

Utilize a Tennessee Divorce Attorney

In any divorce, whether adultery is present or not, it is important to have the right divorce attorney by your side in order to move through the process as smoothly as possible. At Dowden, Worley, Jewell & Olswing, PLLC, we understand that each client’s case is unique, and we are committed to working toward the best possible outcome for each client.


To schedule your consultation with one of our Tennessee divorce attorneys, call us at (901) 295-4635 or visit us online.

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