Divorce Based On Inappropriate Marital Conduct: What to Claim When A Spouse Will Not Concede That There are Irreconcilable Differences

In Tennessee, the only type of divorce that can be characterized as  “no fault” is one based on “irreconcilable differences” between the parties.  You cannot get such a divorce, however, unless you and your spouse agree on all of the terms of the divorce, including property division, spousal support and parenting issues if children are involved.  Since a recalcitrant spouse can prevent you from getting an “irreconcilable differences” divorce by simply refusing to agree to a settlement, you may need to assert a “fault” ground for divorce that will allow a judge to dissolve your marriage even if your spouse does not want one.

The most common “fault” ground for divorce is something known as “inappropriate marital conduct,” a label that can cover a multitude of sins.

It can include physical and emotional abuse (verbal and otherwise), deviant or excessive sexual demands and behavior, or a refusal to engage in sexual intimacy altogether, false accusations, threats and behavior that subjects a spouse to public humiliation and embarrassment, and dating that falls short of outright adultery.  Importantly, the inappropriate conduct must be persistent, not isolated.  While it is sometimes said to amount to conduct that is “such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper,” that is a bit of an overstatement, as one does not really have to prove that continuing to live with the other spouse would be “unsafe or improper.”  Nonetheless, the misconduct at issue must be of a serious and more than fleeting nature.

What happens if the court finds that a spouse has committed inappropriate marital conduct, and grants the other spouse a divorce on that ground?  What impact does that have on other issues in the divorce case?

The short answers are:

  1. It generally has no impact on the division of marital property since “fault” for the divorce is not one of the statutory factors relevant to property division.
  2. It generally has no impact on the formulation of a parenting plan unless the inappropriate conduct calls parental fitness into question.
  3. It can have an impact on the court’s decision whether to award alimony and/or attorney’s fees, and if so, how much (although there are other factors of greater importance to these issues, such as need and ability to pay with respect to alimony, and whether one side has caused the litigation to be unnecessarily prolonged and expensive,with respect to attorney’s fees).

THE BOTTOM LINE:  “Inappropriate marital conduct” is a commonly invoked “fault” ground for divorce that can get you your divorce if your spouse does not want to agree to one, but, it may not have a great deal of impact on other issues in your divorce case.

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