Adultery is a fault-based ground for seeking a divorce and we discussed the implications of that in the blog “Consequences of an at-fault divorce in Tennessee”. So, whether you need to allege adultery against your spouse or to defend yourself against such an allegation, it is important to be aware of the defenses provided by Tennessee law.
When a spouse files for divorce in Tennessee, the opposing spouse or party is given the opportunity to raise an argument in his or her defense. These are called “affirmative defenses” because they admit that the alleged misconduct occurred. Affirmative defenses provide a valid reason that the spouse committed the misconduct. In other words, an affirmative defense is raised as a justification or excuse for marital wrongdoing. Tennessee law provides three affirmative defenses for adultery.
Let’s suppose a husband engages in an extramarital affair. The wife finds out about the affair and files for divorce. The husband should raise an affirmative defense of recrimination, if he can prove that the wife is also guilty of adultery. If recrimination is established, neither the husband nor the wife may use adultery as grounds for divorce. In this situation, one of the parties must find an alternate ground for divorce before the court will grant a divorce in the favor of either party.
As an example, the wife is in an extramarital affair, but the husband is not. The husband finds out about the affair and does not file for divorce. The couple continues to live together as husband and wife and a few years later, the husband files for divorce on the grounds of adultery. In this scenario, the wife should raise the affirmative defense of condonation. This defense is only valid if the husband knew the full extent of the wife's adulterous activities and approved of the activities or forgave the wife. If the wife was conducting extramarital affairs with five other men, but the husband only knew of one, the wife could not use condonation as a defense.
In this slightly more scandalous hypothetical, assume the husband engages in numerous extramarital affairs, but the wife is monogamous. The wife files for divorce, alleging adultery. However, the wife neglects to mention in the divorce complaint that she was paid for the husband’s adulterous affairs. In this case, the husband should raise the affirmative defense of connivance, which is a valid defense when the wife plays an active role in or benefits from the husband’s scandalous activities. Connivance is presumed to be an affirmative defense for both men and women.