I have previously written about New York’s grounds for divorce, including constructive abandonment. Simply put, constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce. Further, case law has established that the abandonment must continue despite repeated requests from the other spouse for resumption of cohabitation. When looking at divorce actions based on constructive abandonment grounds, a lawyer must make an inquiry about whether spousal relations were requested, how many times, and over what period of time. Until recently, it was not clear how many times a spouse must make such request. The courts have held previously that “..evidence that the other spouse refused a single request to engage in sexual relations is insufficient to establish a cause of action on the grounds of constructive abandonment.” Archibald v. Archibald, 15 A.D.3d 431 (2nd Dept. 2005).
The answer to this question has been somewhat clarified by a recent decision. In BM v. MM, 2009 N.Y. Slip. Op. 29235 (Sup. Ct Nassau Co. 2009), the court held that a husband’s refusal to have sex with his wife three times within a year was enough to grant the wife divorce on the grounds of constructive abandonment. The wife testified that she could remember three occasions where she made such requests which the defendant denied and the court credited her testimony. The husband argued that since the wife had made no attempt during the last five years to have sex with him, the grounds for constructive abandonment were not established. The court held that it has recognized that there comes a time in such relationships where it would clearly be futile for one spouse to continue to ask the other to engage in sexual relations. It further found that where the defendant, on his own, moved out of the marital bedroom and into a room on a separate floor and refuses a request, the plaintiff should be relieved of any requirement to continue to ask for sexual relations.
The above facts demonstrate that a New York divorce lawyer must be prepared to present specific factual testimony in order to obtain a divorce on the grounds of constructive abandonment. Unfortunately, it also demonstrates that order to establish constructive abandonment grounds in New York, requires intrusions into marital privacy and disclosure of information most parties would rather keep private. The decision discussed above reinforces my opinion that New York needs to abandon its fault grounds for divorce. No-fault divorce, based upon the breakdown of a marriage, would dispense with the need for intrusions into the marital relationship. Forcing parties to accept fault or be found at fault is time-consuming and costly, and generates unnecessary bitterness during the divorce process.