Adultery is defined as voluntary sexual intercourse between a married person and someone not the spouse of that married person. In Tennessee, adultery can be proven by circumstantial evidence as well as by direct evidence.
There are several defenses to adultery. The first is called recrimination and occurs when the spouse alleging adultery has also committed adultery. The second defense is referred to as condonation. The defense of condonation occurs when the innocent spouse, knowing of the adulterous conduct, takes the guilty spouse back and engages in intercourse. The final defense is connivance. This defense is based upon the knowledge and acquiescence by the innocent spouse in the adulterous spouses’ conduct.
There are several things to keep in mind when it comes to adultery in divorce. First, the adulterous conduct of a parent cannot form the basis of a denial of parenting time. In other words, unless the conduct directly affects the children, it cannot be used by the court when fashioning a custody arrangement. Second, having sexual intercourse with someone other than your spouse after separation is still adultery. Third, adultery has no bearing on the division of property in a divorce case.
Adultery is just one of sixteen grounds for divorce in Tennessee. However, it is the ground that causes the most anger and resentment. From a purely legal standpoint, adultery is no different than any other of the fault based grounds for divorce. Keeping that in mind will hopefully help quail the emotions that seem to run high in cases involving adultery.