I’ve now been in the law business some 40 years or so, primarily practicing in the area of domestic relations. During this time, I have witnessed the divorce rate fluctuate but nevertheless remain high. Most studies report that the divorce rate in the United States reached an all time high during the ‘80s and while the divorce rate has lowered a bit since then, most first marriages today still have a greater than 40% chance of ending in divorce. Second marriages have about a 60% chance of ending in that fashion and third marriages have an almost 75% chance of failure. What does all this mean? It means that, unlike the days of my grandparents, divorce and related issues now touch the lives of almost all of us. If not you, there will be a close family member, perhaps a child, maybe a brother or a sister who will be faced with the legal affairs and ramifications of divorce. Divorces have become so prevalent in modern society that both substantive and procedural law has changed such that the outcome or final disposition is of much more concern than the cause. In other words, our laws today tend to put less importance on whose at fault, or whether there is proof sufficient to award a divorce or to which party the divorce is granted. In even more general terms, one might say that now it’s a given that marriages end, so lets get on with what needs to be done to finalize matters; it is no longer that important as to who might be at fault. In courtrooms today, emphasis is primarily on the final analysis...i.e. the custody and support of children, the division of property, spousal support, etc.
In Tennessee, the courts but more importantly, as the legislature have drifted away from fault as it applies to divorce. While parties still must have sufficient grounds for divorce, long gone are the days when the wronged wife or husband gets revenge by persuading the court to financially punish…even devastate, in some cases… the more guilty party by awarding the bulk of marital assets to the more aggrieved spouse. In Tennessee, the law now simply provides that, in divorce cases, marital property is divided equitably regardless of fault. Most judges today even look down on a spouse who appears to offer a litany of misdeeds and marital wrongs of the other spouse for no other purpose but to publically shame or embarrass the marital wrongdoer.
Today, the courts cannot and will not make a ruling with the intent or purpose of punishing a wayward spouse. Remember, regardless of fault, marital property will be divided equitably, which, in most all cases means equally. The divorce process today even encourages parties in a divorce action to forget fault and settle their differences outside of court. Most states, including Tennessee have now mandated that the parties attempt to settle most if not all of their divorce/custody issues through a process of mediation before the case can actually be heard and decided upon by a court. The parties are not required to settle their case at this mediation but they must make a good faith effort to try. Surprisingly, many divorce/custody matters are now settled through this process of mediation, with the parties throwing the issue of fault aside