An emotional affair, while not technically adultery, can still be considered inappropriate marital conduct, the catch-all fault ground for divorce in our state.
If your client is under the impression that merely dating or keeping company with someone is acceptable because his or her spouse will be hard-pressed to prove that actual sex has taken place, he or she is wrong.
In this state it has long been held that it is unnecessary to have direct evidence of illicit intercourse and that adultery can be proven rather by a mere preponderance of circumstantial evidence. Adultery or otherwise inappropriate marital conduct committed after separation is indeed a ground for divorce.
If it were not, then, in the words of our Court of Appeals, “any spouse is privileged to ‘move out’ of the marital home and cohabit with another without creating a ground for divorce.
A spouse who is carrying on an extramarital relationship during divorce proceedings should be aware that spending marital assets in pursuit of this other relationship can violate the statutory injunction that automatically becomes effective upon the filing of a divorce complaint. The legal ramifications of dissipating marital assets in pursuit of an illicit romance can be manifold: an adjudication of civil or criminal contempt for violating the statutory injunction; an adjustment of the division of marital assets to compensate the non-cheating spouse for the wrongful spending of the other; and/or a downward or upward adjustment to a potential alimony award, depending on whether the cheating spouse is the alimony recipient or obligor, respectively.
A spouse’s infidelity, even when unaccompanied by economic misconduct, may affect an alimony award.
Moreover, once the lawsuit is concluded, the aftermath can be long-lasting.
Dating during the divorce proceedings can poison the spirit of cooperation and make the spouses’ post-divorce dealings with one another all the more difficult if they share children. Furthermore, an intimate relationship that starts before a divorce is finalized has very little chance of long-term survival.
Even if the parties have been separated for some length of time, romantic involvement during the divorce proceedings can be used to prove marital misconduct during the marriage.
Your client’s morals can be called into question even if he or she had been perfect prior to separation.
In states such as Tennessee that recognize fault in a divorce case, dating during divorce proceedings can be characterized as adultery, which is a ground for divorce.