Paramour Clause in Tennessee Divorce: Smith v. McGrath

This case involves a “paramour clause” in which the Court of Appeals issued a Memorandum Opinion, which means the Opinion cannot be cited or relied on for any reason in any unrelated case. Normally I would not consider a Memorandum Opinion to be blog-worthy but decided to include it because of all the interest in paramour clauses following the recent decision in Barker v. Chandler.

Facts: Parents reached agreement on a parenting plan except they could not agree on the details for a “paramour clause.” Father requested the following: “Neither party shall have an overnight guest of the opposite sex of a romantic nature absent marriage or family relation while the minor child is present.” Mother objected to this wording, noting that she and Father had resided together absent marriage after the birth of Child. Mother wanted the trial court to add “under inappropriate circumstances” to Father’s proposed language. Rejecting Mother’s request, the trial court entered the parenting plan with the following paramour clause: “Neither party shall have sexual relations with an overnight guest or be co-habitating with another in a romantic nature absent marriage while the minor child is present.” Mother appealed.

On Appeal: The Court of Appeals modified the trial court’s decision.

There was no transcript or statement of the evidence filed on appeal; thus, the appellate court’s ability to show deference to the trial court was limited. Still, Father advised the Court that he did not oppose the language requested by Mother. Accordingly, Father did not file a brief or oppose Mother’s position on appeal.

In order to effectuate the agreement of the parents, the Court modified the trial court’s paramour clause to read as follows:

Neither party shall have sexual relations with an overnight guest while the minor child is present, under inappropriate circumstances, or co-habit with another in a romantic nature absent marriage while the minor child is present.

There is one other item of interest. The trial court found found that “it was not in the best interests of the child for either parent to have sexual relations with overnight guests of any nature.” Had the trial court known its ruling would get appellate scrutiny, I feel certain more precise language would have been used.

Smith v. McGrath (Tennessee Court of Appeals, Middle Section, February 11, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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