What is a constructive abandonment?

Posted on February 23, 2009 by Daniel Clement

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.
 

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Irreconcilable Differences in New Jersey One Year Later: What Was the Fuss About?

Posted on June 1, 2008 by Daniel Clement
Over a year ago, New Jersey recognized irreconcilable differences as grounds for divorce. So, what can New York lawmakers, who have been struggling to enact a no-fault grounds for divorce, learn from New Jersey’s experience?

According to the New Jersey Lawyer, “The law stands as a classic case of a proposal lingering for years in the state legislature based on opposition from religious groups and, when finally enacted, is actually heaped with praise.”

In the absence of a no-fault or irreconcilable differences ground for divorce, the parties need allege and prove marital fault. Prior to the enactment of New Jersey’s irreconcilable differences grounds for divorce, extreme cruelty was a common ground for divorce.

“All attorneys interviewed agreed that a detailed filing under extreme cruelty had the potential to create an especially combative and mean-spirited divorce proceeding.” The new no fault law has effectively defused some of the animosity.

“Unlike the extreme-cruelty standard, an irreconcilable-differences filing "starts the litigation off on a positive note; you don't have to start the litigation with smearing the other party," added Paterson lawyer José I. Bastarrika.”

The attorneys and judges interviewed, not surprisingly, acknowledged a drastic reduction in cruelty filings.

Perhaps one day, New Yorkers, after enacting a no-fault divorce law, will like our New Jersey neighbors, will look backward and wonder, what was all the fuss about.
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