What is a constructive abandonment?

Despite overwhelming support to adopt a no-fault or irreconcilable grounds for divorce, New York remains the only state in which a party must allege and prove marital fault in order to obtain a divorce.

By far, the most common fault based ground for divorce in New York is constructive abandonment. In the recent case of Mehl v. Mehl, the Appellate Division defined the elements of this ground for divorce.

It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year.

“Basic obligations arising from the marriage” is legalese for sexual relations.

In order to rise to the level of constructive abandonment, the refusal to engage in intercourse must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'"

Further, as the Mehl case illustrates, the person seeking the divorce cannot be the party who refused to have sex.

196 Responses

  1. denise
    I got married last June 6, 2008. My husband was station in a Navy base in Maine a few days later. I had to stay back in NY because of work. The all time he was in Maine I didnt get any visits from him. He was deployed to Kuwait in December. Since we gotten married i have not received any support from him. I havent even gotten a military spouse ID. I havent received any money for bills either. I was taken to ER three times this year alone and he hasnt given me papers need to get Tri Care. He comes back from deployement in April and has no plans to be with me. He has completly abandoned me as if we were never married. I want to annull our marriage but dont know the steps needed to.What steps in the courts should i do.
  2. PJ
  3. Barbara Norpoth
    Hi...my marriage of 25 yrs which started in Germany has ended in the state of NY with the threat of filing with constructive abandonment as fault. We haven't had sexual intercourse in over 2 years as he is impotent and disinterested in marital sex. Is this still a recognized fault in NY? How will No-Fault change this? Thank you! B N
  4. You husband's inability to have sex explains your refusal- he would have no cause of action. That said, do you want to remain married to someone who does not want to be with you?
  5. JW
    I have been married for three and a half years and have been intimate with my husband maybe a handful of times. Definitely less than 10 times in three years. Well about a year ago I ended up having a three month affair and confessed to my husband. He told me that if I wanted to recover the marriage, I would need to sign a post-nuptial agreement and did so but the marriage is worse than ever. I want to consider divorce and wondered if I would be able to argue constructive abandonment or would the infidelity make it baseless?
  6. linda
    I left the state of New York with my three children because my husband was an emotionally abusive, sexually abusive and controlling man and a narrcisist. We were married almost 23 years. Im in the stipulation stage with a request to send my kids to ny for Xmas. It would be risky to send them without residential custody in place, but my attorney wants me to sign the stipulation wherein it states that my husband is divorcing me for constructive abandonment. He and I had sex everyday, if not more than once and sometimes he tried for three. If I was to say no for one night, he would either be very mad into the next day or do something strange and/or disturbing like masturbate in bed right next to me. What is the best thing to do? (There are other settlement issues I'm not happy about, I.e., no maintenance ,when I have three young kids, one with autism.
  7. You should discuss these issues with your attorney. If you doubt the advice you are receiving from your attorney, you may consider getting a second opinion. Good luck.
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