Is it Abandonment if a Spouse Moves Out but Still Pays Support in New York?
Full Question:
Answer:
In New York a party must allege and prove marital fault in order to obtain a divorce. New York Domestic Relations Law § 170 permits the granting of a judgment of divorce on the grounds of "abandonment". That abandonment must have occurred for at least one year prior to the commencement of the action for divorce and must be ongoing. Abandonment means when the spouse voluntarily leaves and has no plans to return except perhaps to pick up a forgotten belonging. Failure to support a spouse or children is a separate matter from abandonment. Even though statute uses only the word "abandonment," case law has developed over the years recognizing what is commonly known as "constructive abandonment." To support a claim for constructive abandonment, a party must allege that abandonment has resulted from the other spouse refusing to engage in sexual relations for at least one year prior to the commencement of the action. By far, the most common fault based ground for divorce in New York is constructive abandonment.
The basis of a "constructive abandonment" cause of action is that since sexual relations and procreation are fundamental to the concept of marriage, failure to engage in sexual intercourse is an abandonment of the very essence of the relationship. This demonstrates a "hardening of resolve" not to cohabit as husband and wife. Accordingly, counsel should allege such a hardening of resolve as not to fulfill a basic obligation of the marriage. In addition, the spouse attempting to obtain the divorce must also show that he or she made repeated requests for relations during that year, that the other spouse refused those requests and, that there are no physical or psychological disabilities that would prevent the parties from engaging in sexual relations over that period, and that the adverse spouse's behavior is intentional and without provocation, cause or consent.
Please see the following NY statute:
§ 170 Dom. Rel. Action for divorce.
An action for divorce may be maintained by a husband or wife to procure a
judgment divorcing the parties and dissolving the marriage on any of the
following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant
such that the conduct of the defendant so endangers the physical or mental
well being of the plaintiff as renders it unsafe or improper for the
plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one
or more years.
(3) The confinement of the defendant in prison for a period of three or
more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery, provided that adultery for the
purposes of articles ten, eleven, and eleven-A of this chapter, is hereby
defined as the commission of an act of sexual intercourse, oral sexual
conduct or anal sexual conduct, voluntarily performed by the defendant,
with a person other than the plaintiff after the marriage of plaintiff and
defendant. Oral sexual conduct and anal sexual conduct include, but are not
limited to, sexual conduct as defined in subdivision two of section 130.00
and subdivision three of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or
judgment of separation for a period of one or more years after the granting
of such decree or judgment, and satisfactory proof has been submitted by
the plaintiff that he or she has substantially performed all the terms and
conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a
written agreement of separation, subscribed by the parties thereto and
acknowledged or proved in the form required to entitle a deed to be
recorded, for a period of one or more years after the execution of such
agreement and satisfactory proof has been submitted by the plaintiff that
he or she has substantially performed all the terms and conditions of such
agreement. Such agreement shall be filed in the office of the clerk of the
county wherein either party resides. In lieu of filing such agreement,
either party to such agreement may file a memorandum of such agreement,
which memorandum shall be similarly subscribed and acknowledged or proved
as was the agreement of separation and shall contain the following
information: (a) the names and addresses of each of the parties, (b) the
date of marriage of the parties, (c) the date of the agreement of
separation and (d) the date of this subscription and acknowledgment or
proof of such agreement of separation.