In Tennessee, when a divorce court decides whether to make an award of alimony, it can give consideration to the fault of the spouse who wants the alimony for the demise of the marriage. For example, if a spouse has committed adultery, the court can take that into account as a factor against awarding alimony to him or her… at least in theory. In practice, however, an adulterous spouse may still receive alimony, and other factors, such as his or her need for alimony and the other spouse’s ability to pay, can sometimes prove to be more important.
A good recent example is the Tennessee Court of Appeals’ decision in Wade v. Wade, No. W2014–01098–COA–R3–CV (April 28, 2015). That case involved a twenty-year marriage. The parties had four children, three of whom were still minors when the wife filed her divorce complaint. The husband filed a counter-complaint, which included a claim that the wife had committed adultery.
The trial court granted a divorce to the husband on the grounds of inappropriate marital conduct and adultery, and denied the wife’s request for alimony. In so doing, the trial court stated, among other things:
“There shall be no alimony awarded to Mother. The Court finds that Father does not have the ability to pay alimony. The Court further finds that the main reason for Mother’s inability to provide for herself is the fact that she was unable to work outside the home due to her homeschooling of the parties’ two younger minor children. Now that Mother no longer has such an impediment to her earning an income, Mother can earn suitable income to support herself. The lack of alimony also reflects the degree of fault of each of the parties to the divorce. Father was a faithful and providing husband who provided to Mother. It is Mother who chose to pursue an adulterous affair and leave the marital residence.”
In reversing the trial court on the wife’s appeal, the Court of Appeals wrote:
“It is not disputed in this case that Mother had an extramarital affair. However, as the trial court found, the economic disparity between Mother and Father is considerable. It is undisputed that Father earns approximately $7,000 per month while Mother testified that she was currently earning approximately $650 per month. Additionally, Mother spent twenty years as a homemaker and homeschooled the parties’ children. As the trial court noted, Mother testified that she would like to complete college and we observe that Mother also testified that she was seeking employment opportunities. Mother stated that her living expenses totaled approximately $3,333 per month and that she sought temporary support for approximately twelve to eighteen months to allow her to complete college and secure employment…. It is undisputed, moreover, that Father’s monthly income is more than ten times greater than Mother’s and that Father’s earning capacity is far greater than Mother’s. Additionally, the trial court placed great emphasis in its order on Mother’s fault …Although Tennessee Code Annotated § 36–5–121(i)(11) gives the trial court the discretion to consider fault when fashioning an award of alimony, fault is but one of numerous statutory factors. In light of the totality of this record, including the economic disparity between the parties, the length of their marriage, and Mother’s contributions as a homemaker and homeschool parent for nearly twenty years, we conclude that the trial court abused its discretion by denying Mother’s request for transitional or rehabilitative alimony for a period of twelve to eighteen months. We find an award of transitional alimony for a period of eighteen months is appropriate in this case. We reverse the trial court’s judgment insofar as it declines an award of alimony to Mother and remand this matter for further proceedings to determine the amount of transitional alimony to be awarded in light of the economic equities and the division of the parties’ property.”
THE BOTTOM LINE: Adultery can be considered as a factor in deciding whether to award alimony, but it does not automatically disqualify a spouse from receiving alimony, and other factors, i.e., need and ability to pay, can be more important.
