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Monday, November 30, 2009

NY Appellate Court Rejects Expansion of Constructive Abandonment to Include Social Abandonment as Grounds for Divorce

New York is the only state in the country that still requires one spouse to prove fault to obtain a divorce when the other spouse refuses to agree to it. Currently, New York only grants a divorce for the following fault grounds:

  • Cruelty
  • Abandonment for one year or more
  • Adultery
  • Confinement to prison for three years or more

Judicial decisions have expanded abandonment to include "constructive abandonment," or the failure and refusal of one spouse to engage in sexual relations with the other for a period of one year or more, thus constituting an "abandonment" of marital obligations.

Recently, the appellate court heard a case that attempted to expand constructive abandonment to include "social abandonment" for one year or more. In Davis v. Davis, the wife claimed constructive abandonment as grounds for divorce. However, she did not accuse her husband of refusing to engage in sexual relations for one year or more, which is the traditional cause for this fault ground. Instead, she claimed that her husband refused to engage in social interaction by:

  • Refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and her birthday
  • Refusing to eat meals together, attend family functions, or accompany her to the movies, shopping, restaurants, and church services
  • Leaving her at the hospital emergency room
  • Generally ignoring her

A lower court had granted the husband's motion to dismiss the cause of action for constructive abandonment, affirming that he was not guilty of this action. The court asserted that constructive abandonment is limited to the refusal of sexual relations despite repeated requests to resume relations for one year or more. The court rejected the grounds of social abandonment, which the wife argued took place in this situation, asserting that it represents a claim of "irreconcilable differences" between spouses, which would in effect establish a "no-fault" divorce in New York.

The court argued that it was up to the legislature, not the courts, to establish a no-fault divorce. The appellate court agreed with the lower court's ruling, effectively ending the debate over whether social abandonment was an appropriate fault ground for divorce.

Currently, the only way to obtain a no-fault divorce in New York is for both spouses to sign a written separation agreement, file it with the courts, and live separate lives abiding by the terms of the agreement for one year or more. At this time, the terms of the separation agreement may be transferred to an official divorce agreement.

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