Facts: Husband and Wife, both 50 years old, divorced after 20 years of marriage.

All issues were settled at mediation except grounds for divorce, alimony, and attorney’s fees. The case went to trial on these issues.

Each party requested a divorce from the other on the grounds of irreconcilable differences or, alternatively, inappropriate marital conduct.

Husband complained Wife inadequately performed her “wifely duties,” meaning sex, and was not cleaning the house.

Wife complained Husband was cohabitating with another woman.

The trial court awarded Husband a divorce from Wife on the grounds of irreconcilable differences.

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court.

Wife argued the trial court erred in granting Husband a divorce on the ground of irreconcilable differences because the divorce was contested and marital fault was at issue.

The ground of irreconcilable differences requires agreement by both parties. Tennessee Code Annotated § 36-4-103(b) prohibits a court from granting a divorce on the ground of irreconcilable differences unless the parties have reached a written agreement “for the custody and maintenance of any children from that marriage and for the equitable settlement of any property rights between the parties.”

Tennessee Code Annotated § 36-4-101(11) says “inappropriate marital conduct” can be found when the husband or the wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper. Thus, inappropriate marital conduct is established when either or both of the parties have engaged in a course of conduct which (1) caused pain, anguish, or distress to the other party, and (2) rendered continued cohabitation “improper,” “unendurable,” “intolerable,” or “unacceptable.”

After reviewing the record, the Court concluded:

The evidence in the record shows that neither party was faultless in the breakdown of their marriage. Indeed, Wife testified that some fault was hers. We find a preponderance of the evidence in the record shows that both parties engaged in inappropriate marital conduct. In situations where both parties are at fault and there exists proof of any ground for divorce, Tennessee Code Annotated § 36-4-129 provides the following option:

(a) In all actions for divorce from the bonds of matrimony or legal separation the parties may stipulate as to grounds and/or defenses.
(b) The court may, upon stipulation to or proof of any ground of divorce pursuant to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both parties are entitled to a divorce or if a divorce is to be granted on the grounds of irreconcilable differences, declare the parties to be divorced, rather than awarding a divorce to either party alone.

In light of our finding regarding both parties’ inappropriate marital conduct, we amend the Trial Court’s judgment to declare the parties to be divorced, rather than grant a divorce to either party alone.

Accordingly, the divorce was granted to each party because each party contributed to the demise of the marriage and both parties agreed that grounds existed.

Norris v. Norris (Tennessee Court of Appeals, Eastern Section, August 24, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.