How Does Constructive Abandonment Impact Divorce Proceedings?

9% of the entire population of New York is divorced. Some of these separations will be amicable, in which both parties come to a mutual agreement and are able to move on with their lives. Yet many divorces can be a lot more challenging for everyone involved, especially if one spouse does not agree with the divorce proceedings.

A divorce suit can be filed for any number of reasons. If you believe your partner is at fault for the dissolution of your marriage, you will want to file an at-fault divorce claim. In these cases, the person filing the claim must prove grounds for divorce. A no-fault divorce, on the other hand, does not rely on any blame and can be filed if both spouses consent to the proceedings. 

In New York, one common reason for filing a fault divorce claim is on the basis of constructive abandonment, in which the marriage is characterized by a lack of sex. But is constructive abandonment a valid argument and how does it affect divorce proceedings? 

What is Constructive Abandonment?

One of the accepted grounds for divorce in the New York is marital abandonment, of which there are various types. Criminal abandonment occurs when a spouse stops providing for and supporting their partner or their children without just cause. Emotional abandonment is when the spouse completely disregards the feelings of the other party.

In the state of New York, constructive abandonment is an important grounds for divorce, and it is defined as the refusal by one spouse to engage in sexual relations with the other. This refusal must have lasted a duration of one or more years before the legal action commenced, and this refusal must be judged to be unjustified, willful, and continual.

Is Constructive Abandonment a Valid Argument?

Whether or not constructive abandonment is a valid argument depends on the exact circumstances. For example, if the defendant spouse has withheld sexual relations for physical or psychological reasons, a court may see their refusal as justified.

In addition, it must also be proved that repeated requests to initiate sexual relations have been made over the course of the previous year or more. Some level of proof is essential in order to successfully file for a divorce. It may be difficult to gather evidence, and the best thing you can do is to keep a record of any relevant instances that back up your claim, for example occasions when your partner rejected your sexual advances.

How Does Constructive Abandonment Affect Divorce Proceedings?

A filing of constructive abandonment will have a significant impact on child custody proceedings. If marital abandonment is proved, it is likely that there is some element of child abandonment too, so there is a good chance the court will rule in your favor.

How constructive abandonment affects division of property and alimony is less clear, and the courts will assess this impact on a case by case basis.

Get in Touch

If you want more information on filing for divorce or making a constructive abandonment claim, get in touch with Adria S. Hillman, Attorney at Law today.

Get In Touch Today.