Legal experts explain what the term means for divorce filings in Tennessee, where Cavallari and Cutler wed and currently reside

By Kara Warner and Robyn Merrett
April 27, 2020 10:49 PM
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After 10 years together, Kristin Cavallari and Jay Cutler are calling it quits — and the Uncommon James founder cites "inappropriate marital conduct" in her divorce filing from the former NFL star.

In divorce documents obtained by PEOPLE one day after the couple announced their split, Cavallari, 33, alleges both "irreconcilable differences" and "inappropriate martial conduct" as grounds for the breakup.

In her filing, Cavallari claims Cutler, 36, "is guilty of such inappropriate marital conduct as renders further cohabitation unsafe and improper." She also states that "any misconduct alleged or implied against her" in Cutler's divorce petition "was in response to and/or as a result of misconduct on [Cutler's] behalf," though Cutler does not seem to allege misconduct against Cavallari in his filing.

While many people are familiar with "irreconcilable differences" cited as grounds for a divorce, "marital misconduct" is a less familiar term more commonly used in divorce filings in "fault" states in the U.S. -- those that require parties to prove fault as a reason for their divorce. Tennessee, where Cavallari and Cutler wed and currently reside, is a "fault" state.

Kristin Cavallari and Jay Cutler
Mark Humphrey/AP/Shutterstock

"In most states, just the fact that you want to get divorced is enough. There's no need to prove fault," L.A.-based family law expert Steve Mindel tells PEOPLE. "But in a few states, fault is still an issue. If you can prove fault, there may be a financial advantage or an advantage with regard to how you co-parent your children."

According to Marlene Eskind Moses, a certified family law trial specialist and manager of MTR Family Law, PLLC, in Nashville, "inappropriate marital conduct" is a commonly and strategically used term in divorce filings in Tennessee.

"There are strategic decisions you make with all the filings. We have 15 different grounds for divorce in Tennessee," she explains. "Irreconcilable differences is certainly the least aversive and the more amicable one. Marital misconduct is the next least-aversive and they can kick up from there."

Moses says "marital misconduct" includes a wide variety of behaviors, from relatively mild grievances to the more serious and potentially criminal.

"It can be somewhat benign with an already crumbling relationship or it can be more extensive depending on what the actual facts and/or allegations are," she says.  "It can be anything from verbal abuse to physical harm, extramarital affairs, to financial withholding, to excessive sex, abnormal sex. ... The term is very expansive. It's pretty much a catch-all," Moses says.

Moses says that these initial pleadings "are ways of getting information before the court and getting opportunities to put out proof," but again emphasizes that there is legal strategy in play. For example, the information alleged in Cavallari's and Cutler's pleadings is "not the end-all-be-all, because people can allege anything, or allege nothing, you just don’t know," she says.

As for what will happen next in regards to their divorce, Moses tells PEOPLE to expect a response to Cavallari's allegation of "marital misconduct."

"You can expect to see that next, an answer to the counter claim and that should be within 30 days," she says.

Jay Cutler and Kristin Cavallari

Mindel expects that the biggest issue for Cavallari and Cutler to settle or agree upon will be custody and working out a parenting plan.

Cavallari is seeking primary physical custody of their sons Camden, 7, Jaxon, 5, and daughter Saylor, 4, with "reasonable periods of parenting time" for Cutler. Cutler is seeking joint custody of the kids.

In his petition, which was filed first, Cutler states that he "has always been the available at home parent and primary caretaker" of their children, which Cavallari denies in her response, saying that she "has been the primary residential parent." Cavallari is asking for child support and that Cutler pay for their kids' health insurance.

"Most states base their child support somewhat on the amount of time each parent spends with the children," says Mindel. "In this case, both parents are sufficiently wealthy independent of each other to support their children in any lifestyle they want, but notwithstanding that, we occasionally will see some games being played with regard to the parenting plan to get more child support or more spousal support."

Mindel shares that Cavallari may have alleged inappropriate marital conduct in order to have the custody of their children be ruled in her favor. "This may just be the warning signal," he says. "That may be one of the reasons why that’s being pled."

In her Instagram split announcement on Sunday, Cavallari maintained that she and Cutler have "nothing but love and respect for one another." A source also previously told PEOPLE that their split had "absolutely nothing to do with" rumors of Cutler cheating with Cavallari's longtime best friend Kelly Henderson.