Do You Have Grounds for Divorce?
In order to get divorced there must be legal grounds to do so, which means you have to have a valid reason to get divorced. Most people have heard the term “irreconcilable differences” but don’t really know what that means or what other grounds for divorce may be and how it affects your case, so we will discuss that here.
Irreconcilable Differences
This is by far the most common grounds for divorce, but it is also the newest one in most state’s laws. It is also called a “no fault divorce,” which implies that neither party is being blamed for the divorce and both spouses agree to get divorced voluntarily. This is the grounds used whenever there is an uncontested divorce or the case is settled by an agreement. You cannot go to trial and get a divorce based on irreconcilable differences, so your spouse absolutely has to agree to the divorce and sign an agreement to use these grounds.
This grounds for divorce was an innovation in the 1960’s and 1970’s in American law as people wanted ways to get out of marriages even if they didn’t have legal grounds to do so. Prior to the introduction of no-fault divorces, you had to prove in court your spouse committed a legal offense against you like adultery in order to get divorced at all. Even if both spouses agreed to get divorced, they could not do so unless there were legal grounds proven in court. This is why we now have irreconcilable differences divorces.
Divorce On Specific Grounds
If your spouse refuses to cooperate in the divorce process or there is no signed agreement, you will have to go to court to prove that you have grounds for divorce. That requires at least one other witness other than yourself testify that your spouse committed specific offenses against you that justify a divorce. This happens most often in the case of a default judgment, which is where your spouse is served notice of the divorce but never shows up or participates, so you have to go ask the judge to grant you a divorce in their absence. It can also occur in a trial, but often in trials both parties stipulate they want the divorce, so the grounds are that the court has legally declared each of them divorce after a trial on the merits.
The two most common grounds for divorce are “inappropriate marital conduct” and “living separately for more than two years with no minor children.” We use these the most often as they are the easiest to prove. The one about separation only requires you live separately from your spouse and have no children, so that is self-explanatory. Inappropriate marital conduct is used often because it is vague. You can say just about anything about your spouse, and the court will grant a divorce. This is usually that you argue and fight a lot in the house, there was a police incident for domestic violence, they have a drug/alcohol/gambling problem, and so on. Just go to court and say your spouse is a cruel jerk and have your friend agree with you, and you will get divorced.
Here is the full list of statutory grounds for divorce in Tennessee:
Irreconcilable differences have arisen between the parties that will prevent them from living together as husband and wife.
The Defendant has committed inappropriate marital conduct.
The Defendant has committed adultery.
The Defendant is a habitual abuser of drugs and/or alcohol.
The Defendant has abandoned Plaintiff or turned Plaintiff out-of-doors and refused or neglected to provide for Plaintiff.
The Defendant has willfully and/or maliciously deserted Plaintiff without reasonable cause for one full year.
The Defendant has been convicted of an infamous crime.
The Defendant has been convicted of a felony and sentenced to confinement in the penitentiary for one year or more.
The Defendant has made an attempt on the life of the Plaintiff by means showing malice against the Plaintiff.
The Defendant knowingly entered into a second marriage in violation of a previous marriage still subsisting.
The Defendant has refused to remove to the state of Tennessee without a reasonable cause and Defendant has willfully been absent from Plaintiff, who has resided in Tennessee for two years.
The Defendant was pregnant at the time of the marriage without the knowledge of Plaintiff.
The Defendant at the time of the marriage was, and still is, naturally impotent and incapable of procreation.
The Defendant has offered such indignities to the Plaintiff's person as to render cohabitation intolerable and, therefore, forced Plaintiff to withdraw.
There has been a final decree of divorce from bed and board and/or separate maintenance for more than two years.
The parties have lived in separate residences for more than two years, have not cohabitated as man and wife during such period, and there are no minor children of the marriage.
Adultery
A lot of people think that adultery is one of the most common grounds for divorce, but it really isn’t. For one thing, it can difficult to prove. You can suspect that your spouse is engaging in sexual conduct with another person, but having solid proof of it is a whole different story. The clearest evidence is that they moved in with someone else and are expecting a new child. Other than clear scenarios like that, it is often mere speculation.
Abandonment
Another common question is that people think that if one of them moves out, then that is abandonment. It isn’t. Nearly everyone getting a divorce has already separated and living apart. I’ve only seen abandonment used as a grounds a handful of times, and on one of those occasions, the judge asked if that was actually grounds for divorce and had to go look it up. Abandonment should be viewed as a disappearance. Your spouse left one day and never returned and are now missing.
Does Grounds Change What You Get?
No, not really. Tennessee courts are required to equitably divide the marital estate without regard to the grounds for divorce. This means that if you can prove adultery, you still get the same result no matter what. There are punitive damages or any form of punishment for proving how bad your spouse is. This is why we rarely spend any time discussing grounds in divorces. It just doesn’t matter the overwhelming majority of the time.
However, it is possible for grounds to effect the case in other ways. For example, if your spouse has a gambling problem and wasted the marital assets, then the court could reimburse you for those losses. This is called dissipation, and it means one of you used marital assets for non-marital purposes to the detriment of the other spouse, so the equitable solution is to add those assets back in to the estate for a more lopsided distribution.
Can You Defeat the Divorce by Disproving Grounds?
Occasionally one spouse wants to get divorced when the other does not, so the defending spouse wants to just oppose everything in an effort to save the marriage. In theory you would think this would be possible, but the reality is that it isn’t. I had a case where this came up and another lawyer told me of a case where the Defendant did successfully get the case dismissed for lack of grounds, but the Plaintiff appealed, and the divorce was granted. You can imagine that courts in the United States in the 21st Century are not going to legally force someone to remain married to someone else against their will, so if your spouse files for divorce, you should presume that is happening even if you don’t want it.
