Divorce
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Introduction
Tennessee has two categories of divorce. The first is uncontested divorce, which is usually based on irreconcilable differences. The second is contested divorce, which requires proof of grounds for divorce. In the latter instance, the parties cannot agree, and they must go to trial. The grounds for a contested divorce include the following: adultery; habitual drunkenness or abuse of narcotic drugs; living apart for 2 years with no minor children; inappropriate marital conduct; willful or malicious desertion for one full year without a reasonable cause; conviction of a felony; pregnancy of the wife by another before the marriage without the husband’s knowledge; refusal to move to Tennessee with your spouse; and living apart for 2 years, malicious attempt on the life of another; lack of reconciliation for two years after the entry of a decree of separate maintenance; impotency and sterility; bigamy; and abandonment or refusal or neglecting to provide for spouse although able to do so.1 At least one of the parties must have resided in Tennessee for approximately 6 months before filing the complaint to proceed with a divorce in Tennessee. A divorce decree will not be final until it is approved by a judge. If the parties settle, a martial dissolution agreement divides the parties’ assets and debts, and may also identify the type/terms of any alimony. Where the divorcing spouses have children, the court also puts in place a permanent plain to decide child-related issues. The plan will designate a parenting schedule and make other provisions for any minor children. If the parties do not settle, a divorce trial will determine all issues.2
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Text of the Statute(s)
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Tenn. Code Ann. § 36-4-101 – Grounds for divorce from bonds of matrimony
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Tenn. Code Ann. § 36-4-106 – Contents of petition for divorce and legal separation
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Cases
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McDaniel v. McDaniel, No. E2009-00447-COA-R3-CV, 2010 WL 2134146 (Tenn. Ct. App. May, 27, 2010)
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Procedural Posture: Wife appealed from lower court’s decision awarding divorce to father based on mother’s extramarital affair.
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Law: Federal Wiretap Act and Tennessee Wiretap Act (“TWA”).
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Facts: In a divorce proceeding between the McDaniels, Mr. M submitted a recording of Mrs. M’s phone conversation with her son from a previous marriage. When the recordings were played at trial, they impeached Mrs. M’s testimony about what she had told her son during a telephone conversation. The recording revealed that Mrs. M was trying to have Mr. M thrown in jail and that she had had an extramarital affair. The conversation had been recorded because the son was living with his father and stepmother who had installed a tape recording machine on their telephone line that recorded all telephone calls, assuming that it was turned on. Neither Mrs. M nor her son knew of the recording. The son’s stepmother had turned the recording over to Mr. M after she listened to the conversation as she thought it might help him in trial. Mrs. M appealed, arguing, among other things, that the conversation was not admissible because it had been recorded without her and her son’s knowledge or consent.
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Outcome: The court affirmed the lower court’s ruling granting Mr. M a divorce and finding the mother at fault as well as its order finding that he should be the primary residential parent of the parties’ three minor children. The court determined that even if the recording violated the TWA, its admission was still harmless error because “there were so many other times that Mother lied that her credibility was ruined regardless of whether the tape recording was admitted. We agree that there were other instances where Mother’s credibility was damaged. As set forth previously, when concluding that Mother’s credibility was lacking, the Trial Court stated there were several times Mother’s credibility was implicated. However, the only specific instance actually discussed by the Trial Court involved the recorded conversation.”3
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Special Notes: The court discussed the Tennessee statute and/or its federal counterpart in tandem, noting that they were generally “in agreement” that “there is no violation of either state or federal law if one party to a conversation consents to a recording.”4
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Klumb v. Goan, 884 F. Supp. 2d 644 (E.D. Tenn. 2012)
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Procedural Posture: Order and opinion issued following a 4-day bench trial.
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Law: Federal Wiretap Act and TWA.
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Facts: The parties were married when the defendant C installed spyware on her then-husband’s computer and began to monitor his emails. She also allegedly tried to defraud him of his property during their divorce proceedings by drafting and having him sign a pre-nuptial agreement that contained terms different from what the parties’ had discussed.
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Outcome: The court held that the defendant had violated the federal Wiretap Act and the TWA by surreptitiously installing and using spyware on her ex-husband plaintiff’s office computer, so she could forward those emails to her own account when he accessed them. Given that defendant was trying to use the spyware and her access to plaintiff’s email to leverage herself in the parties’ divorce proceedings, and that she tried to orchestrate a fraud in the signing of the prenuptial agreement, and frame him for adultery, the court also found the defendant liable for punitive damages. Finally, the court found that defendant was required to pay plaintiff’s attorney fees resulting from the dispute. Notably, both the federal Wiretap Act and the TWA allow a person who’s electronic communication was intercepted in violation of the federal and Tennessee Wiretap acts to obtain damages, including punitive damages and reasonable attorney’s fees and costs.5 The court found, however, that the defendant’s installation of the spyware twice on two different computers did not warrant defendant paying more than $10,000 in liquidated damages.6
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Special Notes: In analyzing the claims that defendant had violated the TWA, the court explained that the TWA was “in all respects relevant to this lawsuit, identical to the federal Wiretap Act,” and that, therefore, it was proper to rely on cases interpreting the federal Wiretap Act to interpret the TWA.7
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Practice Pointers
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Tennessee is an at-fault divorce state, meaning that a court may hold one party responsible for the breakdown of the parties’ marriage.
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A court will consider the improper admission of evidence to be harmless error where that evidence was not the sole information impeaching the party’s credibility.8
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See Tenn. Code Ann. § 36-4-101 (setting forth grounds for a contested divorce). ↩
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More information on Tennessee’s divorce laws and the applicable forms are available at http://www.tncourts.gov/help-center/court-approved-divorce-forms (last visited July 19, 2013). ↩
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McDaniel v. McDaniel, No. E2009-00447-COA-R3-CV, 2010 WL 2134146, at *4 (Tenn. Ct. App. May, 27, 2010). ↩
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Id. (citing State v. Mosher, 755 S.W.2d 464, 467 (Tenn. Crim. App. 1988) (“So long as one of the participants to an electronically recorded conversation consents to the procedure, there exists no constitutional infringement.”); see also Robinson v. Fullton, 140 S.W.3d 312 (Tenn. Ct. App. 2003) (involving unlawful recording conversations by a husband of a conversation between his wife and her brother when neither party to the conversation was aware that it was being recorded)). ↩
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Klumb v. Goan, No. 2:09-cv-115, 884 F. Supp. 2d 644, 664 (E.D. Tenn. 2012) (citing 18 U.S.C. § 2520(c)(A)-(B), and Tenn. Code Ann. § 39-13-603(a)(1)(A)-(B)). ↩
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Id. at 665. ↩
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Id. at 661. ↩
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McDaniel, 2010 WL 2134146 at *4. ↩