All is fair in love and war…well, the judge may differ with this opinion. Many persons going through a divorce experience a euphoric feeling of freedom during the initial phase of the case. It can be exciting, right? A new chance at true love. That confidence booster you really needed. Or perhaps time to do those things you have always wanted to explore. However, the most important issue to realize at this stage of your “new-found freedom” is that you may want to decline the impulse to date until such a time the Court has ordered your divorce FINAL.
In Tennessee there are two types of grounds for divorce-fault, or no-fault. The no-fault grounds for divorce are “irreconcilable differences” (yes, the 1984 film starring Ryan O’Neal and Shelley Long was aptly titled for this situation) and “living in separate residences and not cohabiting as spouses for at least two years” (this ground applies only if the couple has no minor children). The fault grounds for divorce are a little more interesting, and some are very obvious. They include, but are not limited to impotence, bigamy, desertion of over one year, incarceration for a felony, attempting to take the other spouse’s life, pregnancy by another person without husband’s knowledge, habitual drunkenness or drug abuse after the marriage, inappropriate marital conduct, abandonment, and last but not least-adultery.
So, let’s think about this for a moment. Adultery is grounds for a “fault” divorce. When you and your spouse decided to end your marriage, your Complaint for Divorce stated the grounds as “irreconcilable differences.” Then-that aforementioned euphoric feeling of freedom enters. The juices are flowing. That attractive man or woman you have always wanted to talk to happens to be in line with you at the coffee shop. One thing leads to another and…BOOM, you are now seeing each other and dating. Sounds exciting, right? WRONG. You have now opened the door for your spouse (yes, you are still married at this point until the Court enters your Final Decree of Divorce) to amend his/her Complaint for Divorce to include grounds for adultery. Adultery is not defined within the Tennessee Code, but is widely accepted by the judiciary to mean sexual intercourse between a married person and a third party other than one’s spouse. An emotional affair, while not technically adultery, can still be considered inappropriate marital conduct, the catch-all fault ground for divorce in our state. Many people fall under the false-impression that merely dating or keeping company with someone is acceptable because his or her spouse will be hard-pressed to prove that actual sex has taken place; he or she is wrong. In this state it has long been held that it is unnecessary to have direct evidence of illicit intercourse and that adultery can be proven rather by a mere preponderance of circumstantial evidence.