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The History of Fault-Based Divorces

To have an agreed divorce, you and your spouse must agree on everything from who gets the house to who gets the retirement account, to who gets the kids, to who gets the dishes. Chances are, if you had the ability to agree on that level of detail, at the beginning of a process you barely understand, you would not be getting a divorce in the first place.

So, most people file a fault-based divorce. This is simply a divorce where you acknowledge that not all issues are resolved, and you ask the Court to resolve anything you and your spouse are not able to work out during the process.

Fault based divorces are an historical left-over. They date back to the time when men had almost exclusive economic power, and women were viewed as little more than workhorses whose job was to bear and raise the children to become good farmhands.

Back in those days, it was not uncommon for men to, shall we say, trade their wives in on a younger model. The older women would be turned out of the house, and have nowhere to go, and no money except something provided by the State, called a “Widow’s Pension.” In other words, to escape the shame of being divorced, these women would claim their husbands had died and ask for government benefits as a “widow.”

Eventually, the General Assembly caught on, and passed a law, telling these husbands that before they abandoned their wives to the economic care of the state, they had to show that their wives had done something so wrong that it merited throwing them out of the house. The Tennessee legislature even created a list of what was bad enough to turn the wife out, starting out with things like, “inability to procreate,” “maliciously trying to kill your spouse,” and “secretly married to another man.”

Eventually, the list grew, and now applies to women and men equally, with a list of┬ánine statutory grounds for divorce. These incorporate more modern problems, including drug and alcohol abuse, abandonment, and, the fault most used in modern practice – “inappropriate marital conduct.” The last ground is a catch all, intended to say as little as possible to establish grounds for divorce. In other words, if you are served with divorce papers that allege “inappropriate marital conduct,” you can be fairly certain that your spouse intends to fight clean.

And that’s how a divorce begins.

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