Upon drafting of a complaint for divorce, a party must assert a certain fault as grounds. There a number of grounds for fault enumerated in the statute. A common ground for fault in a divorce action is adultery. This is often asserted where a spouse is seeking alimony or seeks to have the cheating spouse adjudicated as having committed adultery. Upon service of the summons and complaint alleging adultery, the defendant spouse must admit or deny the allegation and assert an affirmative defense in their answer which is a responsive pleading to the complaint for divorce. The affirmative provides a valid reason for the misconduct. The following are affirmative defenses to adultery in Tennessee:
Recrimination:
Pursuant to T.C.A. 36-4-112, if the cause assigned for the divorce is adultery, it is a good defense and perpetual bar to the same if the defendant alleges and proves that: (1) ”The complainant has been guilty of like act or crime.” Thus, an unfaithful spouse who can prove that the other spouse has also been unfaithful may thereby prevent the use of adultery as a ground for divorce in certain circumstances. However, because recrimination is an affirmative defense, Thomasson v. Thomasson, 755 S.W.2d at 786, it must be specially pleaded in the answer which is a responsive pleading to the complaint for divorce pursuant to Tenn. R. Civ. P. 8.03.
Condonation:
A number of definitions have been set forth for the affirmative defense of condonation. It must be specially pleaded in the answer which is a responsive pleading to the complaint for divorce pursuant to Tenn. R. Civ. P. 8.03. Pursuant to T.C.A. 36-4-112, condonation applies when “complainant has admitted the defendant into conjugal society and embraces after knowledge of the criminal act. Condonation, apart from statute, has been variously defined as a state of mind,” McCarthy v. McCarthy, 123 Conn. 409, 195 A. 607 [1938], a blotting out of the offense and restoration of the offending spouse to the same position occupied before the wrong, Greco v. Greco, 32 Del. 242, 121 A. 666 [1923], or facts warranting the presumption that there has been forgiveness, reconciliation, reunion and restoration of all marital rights. In the matter of Gilliam v. Gilliam, 776 S.W.2d 81 (1988), the court of appeals adopted language from the order of the trial court attesting to its thorough and precise statements and analysis. The court of appeals appears to accept or adopt three criteria for why defendant husband’s affirmative defense of condonation was without merit. These are as follows: “The Court holds that condonation is not a valid defense in the instant case. Even though there was a continuation of marital cohabitation, after defendant admitted to plaintiff his affairs with two women, this alleged condonation was ineffective for three reasons:
1. Defendant did not make a full disclosure regarding the number of his paramours.
2. Defendant induced by fraud the resumption of marital relations because he did not have a sincere intent to forego the adulterous relationship; and
3. Defendant secretly engaged in adulterous relationships after the alleged condonation.”
Connivance:
Pursuant to T.C.A. 36-4-112, connivance applies when “the complainant, if the husband, allowed the wife’s prostitutions and received hire for them.” This is a rare defense applied in litigation of divorce actions. The element of corrupt consent is considered to be an essential ingredient. The underlying principle is expressed by the latin aphorism, “Volenti non fit injuria,” which means, “He who consents cannot receive an injury.” See “An Examination of Connivance, as a Defense to Divorce.” Both knowledge and acquiescence must be shown to establish consent or connivance. Hanover v. Ruch, 809 S.W.2d 893 (1991). Connivance alleges that the complaining spouse agreed to and even participated in the adultery or created the opportunity by enticing someone to seduce the spouse. It must be specially pleaded in the answer which is a responsive pleading to the complaint for divorce pursuant to Tenn. R. Civ. P. 8.03.
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