Area of Law:
Divorce may be defined as the legal ending of a marriage. Married couples do not have a legal or a constitutional right to seek a divorce, but states like Tennessee commonly grant divorces because to force a couple to stay married would be considered against public policy.
"No-fault" and "fault" are the two types of grounds, or justifications, for divorce in the United States. In some states, no-fault is the only suitable justification for a divorce, even if fault grounds exist within the marriage. The other states, such as Tennessee, allow the parties to select either a no-fault or a fault divorce. The Cornell University Law School website, law.cornell.edu, gives a comprehensive overview of divorce and separation law in the United States.
The United States first adopted the concept of a no-fault divorce in the late 1960's, and nearly all of the states currently allow for some form of it. A no-fault divorce is one in which the parties do not legally fault, or blame, each other for the divorce. Some examples of the bases for a no-fault divorce include “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” One spouse cannot usually stop a no-fault divorce, simply because when one spouse wants a divorce and the other spouse does not, this constitutes irreconcilable differences, which justifies a no-fault divorce. In Tennessee, the no-fault grounds for divorce are irreconcilable differences, plus a showing that the spouses have been living apart for two years.
Many states require a "cooling-off" period of separation for a specific length of time before no-fault divorce proceedings can commence. During this time, the couple is required to live separate and apart with the intent that the separation will become permanent. The duration of the cooling-off period varies according to state law. In Tennessee, there is a waiting period of 60 days from the date that the divorce complaint was filed, or 90 days if there are children from the marriage.
Some states also accord fault grounds for divorce. Common fault grounds include cruelty, desertion, adultery, prison confinement, habitual intemperance (drunkenness or drug addiction), and impotency. In Tennessee, the fault grounds for divorce include adultery, desertion, cruel and inhumane treatment, conviction of a felony accompanied by a sentence of confinement in the penitentiary, and habitual drunkenness or abuse of narcotic drugs.
There are several “defenses,” or denials, that are sometimes used with regards to fault divorces. In Tennessee, one defense to adultery is recrimination, which is proof that the other spouse also engaged in adultery, or had sex with the spouse after knowledge of the adultery. Another defense to adultery is condonation, which applies in the case where a husband solicited his wife for prostitution or exposed her to “lewd society that ensnared her to adultery.” For a full explanation of divorce law in Tennessee, visit findlaw.com.
These defenses are not used often, however, perhaps because they require witnesses and additional court time, which is expensive and can drag out the divorce. Another reason may be that even if the defense is proven, courts will typically still grant the divorce rather than require the couple to remain married when at least one spouse does not wish to do so.
Divorce laws vary widely across the United States. The American Bar Association provides a variety of information regarding divorce requirements state by state on their Section of Family Law website. A chart comparing all 50 states, including Tennessee, can be found at abanet.org.
*An example of a Tennessee Divorce Settlement Agreement can be seen on Free Legal Aid.