Does “fault divorce” have consequences? Remember the Hank Williams’ song, Your Cheatin’ Heart? The unfaithful lover is told:
Your cheatin’ heart,
Will make you weep,
You’ll cry and cry,
And try to sleep,
But sleep won’t come,
The whole night through,
Your cheatin heart, will tell on you…
Well, what may make the cheater weep, cry and lose sleep even more is the divorce decree that awards alimony to the aggrieved spouse based on a finding of adultery.
What is “fault divorce?”
In Tennessee, adultery and other “fault”-based grounds for divorce can be considered by the courts in deciding whether to award alimony and in what amounts. (Other fault-based grounds for divorce include bigamy, abandonment, imprisonment, attempting to kill the other spouse – always a bad idea– habitual drunkenness or drug abuse and cruel and inhuman treatment.)
And, the tears may flow even more when the guilty party finds out that he or she may also have to pay the other spouse’s attorneys’ fees, which courts may also award based on a determination that includes a consideration as to who is at fault for the breakdown of a marriage. However, cheating is not the only factor, and the cheating spouse may sleep a little easier knowing that when courts decide the question whether to award attorneys’ fees, they must also take into account the real economic needs of both parties and their respective ability to pay for their own counsel.
What else is taken into account in “fault divorce?”
So, if the “victim” spouse is in good financial shape and the adulterous spouse is worse off financially, an award of attorneys’ fees is less likely. Indeed, trial courts have been reversed on appeal for not taking all of the relevant factors into account. As the Tennessee Court of Appeals explained in one decision:
In this case, the Trial Judge did not engage in the analysis and balancing of the statutory factors in making the award [to the husband], never addressing the issue of the husband’s need and the wife’s ability to pay. While the Judge did state that he considered ‘the totality of the circumstances,’ he nonetheless focuses singularly upon the wife’s behavior and fault in committing adultery. The record is devoid of any indication that the Judge considered the husband’s financial need or the wife’s ability to pay, which are the two cornerstones of the balancing test. … The husband did not carry the burden of showing that he could not afford to retain counsel.” Wilderv. Wilder (Tenn. Ct. of Appeals at Knoxville 2001).
So, as with most things in life, who has the money and how much will probably rule the day in these situations.
