Inappropriate marital conduct is by far the most popular fault-based ground for divorce in Tennessee. See earlier posts for the important distinction between no-fault and fault-based divorces. Inappropriate marital conduct is the willful and persistent infliction of unnecessary suffering on a spouse. The range of marital conduct considered “inappropriate” is broad. This makes it a popular ground to allege compared to many of the other fault-based grounds for divorce.

Physical abuse is a clear example of inappropriate marital conduct. A spouse who causes unnecessary physical pain and suffering to the other spouse may also be found guilty of inappropriate marital conduct. Examples of physical abuse include browbeating and bullying, and holding a gun on the spouse. The Supreme Court of Tennessee has even recognized "abnormal sex" as a type of inappropriate marital conduct. Excessive and unwanted sexual intercourse when the spouse is in delicate health constitutes cruel and inhuman treatment. Conversely, a spouse’s refusal to engage in physical intimacy has also been considered by Tennessee courts in determining whether marital conduct was inappropriate.

Verbal abuse also can be considered inappropriate marital conduct if it is persistent and affects the spouse’s mental or physical health. Instances of verbal abuse include false allegations of sexual abuse of children, false accusations of adultery, false accusations of incest, and threatening telephone calls. The use of profanity toward the spouse has also been recognized as verbal abuse.

Other acts that Tennessee courts have deemed to constitute inappropriate marital misconduct include the failure to provide a home and clothing, notifying merchants not to extend credit to the spouse, and giving attention to persons of the opposite sex. If, for example, a husband is unable to prove adultery, but can prove that his wife traveled, dined, and slept in motel rooms with another man on a repeated basis, the husband may use inappropriate marital conduct as grounds for divorce.

Even if a court grants a divorce based on one of these types of misconduct, it may still choose to not weigh the conduct heavily when determining fault. The court’s decision will depend largely on the type of misconduct and the severity and persistence of the conduct. If the spouse who is accused of committing the conduct can raise an affirmative defense to the conduct, he or she may be absolved of fault.

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