Marital Abandonment

Proof of desertion or of neglect of spouse, child or children by any person shall be prima facie evidence that such desertion or neglect is willful; and proof that a person has left his or her spouse, or his or her child or children in destitute or necessitous circumstances, or has contributed nothing to their support for a period of thirty days prior or subsequent either or both to his or her departure, shall constitute prima facie evidence of an intention to abandon such family.

New York

New York Domestic Relations Article 10 – § 170 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 . . . (2) The abandonment of the plaintiff by the defendant for a period of one or more years.

Reference Desk

Davis v. Davis, 71 A.D.3d 13 (N.Y. 2009)

Domestic Relations Law § 170 sets forth six statutory grounds on which a spouse may seek to divorce another. The abandonment ground for divorce, set forth in Domestic Relations Law § 170 (2), provides that an action for a divorce may be maintained based upon “[t]he abandonment of the plaintiff by the defendant for a period of one or more years.” Abandonment was recognized as a statutory ground for divorce in the Domestic Relations Law in 1966 (L 1966, ch 254, § 2). The essence of abandonment is the refusal of one spouse to fulfill “basic obligations springing from the marriage contract” (Schine v Schine, 31 NY2d 113, 119 [1972]; see Mirizio v Mirizio, 242 NY 74, 81 [1926]).

A viable cause of action under Domestic Relations Law § 170 (2) has been recognized in three different factual forms (see Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, CPLR C170:7). The first, not applicable here, involves a defendant spouse’s actual physical departure from the marital residence that is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return (see Kaplan v Kaplan, 46 AD3d 628 [2007]). The second, also not applicable here, exists when the defendant spouse locks the plaintiff spouse out of the marital residence, absent justification or consent (see Schine v Schine, 31 NY2d 113, 119 [1972]; Soldinger v Soldinger, 21 AD3d 469, 470 [2005]; Carpenter v Carpenter, 278 AD2d 695, 696 [2000]). The third is based on “constructive abandonment,” which has been routinely defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations 16*16(see Chellappan v Murugan, 62 AD3d 929 [2009]; Gulati v Gulati, 50 AD3d 1095, 1097 [2008]; Meccariello v Meccariello, 46 AD3d 640, 641 [2007]; Hathaway v Hathaway, 16 AD3d 458, 459 [2005]).

The earliest interpretation by the Court of Appeals that arguably extended the notion of “abandonment” beyond its plain dictionary meaning arose in the 1926 case of Mirizio v Mirizio (242 NY 74 [1926]). Mirizio involved a wife’s refusal to consummate a civil marriage with her husband pending the conduct of a religious ceremony in which the husband refused to partake. The Court of Appeals held in Mirizio that a spouse’s refusal to consummate a marriage constitutes a breach of the marriage contract, permitting the dissolution of the marriage itself (id. at 80-81). However, the facts of the case limited its applicability to the refusal to consummate a marriage, and did not necessarily extend to a spouse’s refusal to engage in sexual relations after a consummation had occurred.

The law on marital abandonment remained quiet between 1926 and 1960. In the 1960 case of Diemer v Diemer (8 NY2d 206 [1960]), the New York Court of Appeals engaged in a new and thorough discussion of constructive abandonment, resulting in a somewhat more expansive definition of that cause of action. Diemerinvolved a refusal by one spouse to continue sexual relations with the other spouse as a result of newly discovered religious concerns. The Court of Appeals noted that marriage “involves something far more fundamental than mere physical propinquity and, as a consequence, abandonment is not limited to mere technical physical separation” (id. at 210 [internal quotation marks omitted]). The criterion for abandonment, the Court continued, is how fundamentally the denial of a marital right strikes at the institution of marriage (id.). The Court of Appeals concluded in Diemer that a refusal of one spouse to engage in sexual relations with the other spouse undermines the central structure of marriage, and qualifies as an abandonment that is constructive, rather than actual, in nature (id. at 210-211). Constructive abandonment, therefore, was cognizable when a plaintiff spouse could prove that the abandoning spouse unjustifiably and continually refused to fulfill this basic obligation arising from their marriage contract for a period of at least one year (see generally Diemer v Diemer, 8 NY2d at 210; Mirizio v Mirizio,242 NY at 81; Biegeleisen v Biegeleisen, 253 AD2d 474, 475 [1998]; Pascarella v Pascarella, 210 AD2d 915, 916 [1994]; Lyons v Lyons, 187 AD2d 415, 416 [1992]).

17*17 The law of marital abandonment returned to a period of quietude for 45 years following 1960. During those years, this Court never recognized constructive abandonment in any factual context other than that relating to the refusal of sexual relations (see e.g. Chellappan v Murugan, 62 AD3d at 929; Mehl v Mehl, 59 AD3d 402, 403 [2009]; Reid v Reid, 57 AD3d 960 [2008]; Warman v Warman, 52 AD3d 596, 597 [2008]; Gulati v Gulati, 50 AD3d at 1097; Meccariello v Meccariello, 46 AD3d at 641; Hathaway v Hathaway, 16 AD3d at 459; Gonzalez v Gonzalez, 262 AD2d 281 [1999]; Silver v Silver, 253 AD2d 756 [1998]; Biegeleisen v Biegeleisen,253 AD2d at 475; Tissot v Tissot, 243 AD2d 462 [1997]; Lyons v Lyons, 187 AD2d at 416; Caprise v Caprise, 143 AD2d 968, 970 [1988]). Constructive abandonment appears to have been similarly limited by reported cases from the Appellate Divisions of the First Department (see e.g. Haymes v Haymes, 252 AD2d 439 [1998]; Wilson v Wilson, 101 AD2d 536 [1984]; Weisman v Weisman, 93 AD2d 737 [1983]), the Third Department (see e.g. Conrad v Conrad, 16 AD3d 794 [2005]; Shortis v Shortis, 274 AD2d 880 [2000]; Murphy v Murphy, 257 AD2d 798 [1999]; Mikhail v Mikhail, 252 AD2d 772 [1998]), and the Fourth Department (see e.g. Smith v Smith, 254 AD2d 788 [1998]; Edward W.R. v Barbara A.R., 248 AD2d 964 [1998]; Pascarella v Pascarella, 210 AD2d at 915). Indeed, we have found no appellate-level determination in this state, including by the Court of Appeals, which has applied constructive abandonment to factual allegations independent of the sexual component of marriage.

People v. Cullen, 153 N.Y. 629 (1897)

Abandonment, in the sense in which the term is used in the statute, means the actual and willful desertion by the husband of the wife. It is the willful act of actually leaving her, or separating from her, and the withdrawal of all aid and protection implied in the marriage relations. If the wife herself procures the separation, or consents to it, the case does not come within the statute. It cannot be the result of an agreement or affected by the judgment of a court, but must be what is known to the criminal law as willful and voluntary [***19]  desertion or abandonment. In Fitzgerald v. Fitzgerald (L. R. [1 P. & D.], 694) the court thus stated the rule applicable to the construction of a similar statute: “No one can desert who does not actively and willfully bring to an end an existing state of cohabitation. If the state of cohabitation has already ceased to exist, whether by the adverse act of husband or wife, or even by the mutual consent of both, desertion, in my judgment, becomes from that moment impossible to either, at least until their common-law life and home have been resumed.” And desertion or abandonment has been defined in substantially the same language in other cases. (Pape v. Pape, L. R. [20 Q. B. D.], 76; Thompson v. Thompson, 1 S. & T. 231.)

The same or similar terms, when used in the law of marriage and divorce, have been defined by this court, and it is held  [*639]  that desertion means the willful and voluntary separation by the husband from his wife without justification and with the intention of not returning. (Williams v. Williams, 130 N. Y. 193.)

Hickey v. Hickey, 152 Wash. 429 (1929)

[A]n abandonment to be a cause for a divorce must be willful and intentional, without the intention of returning and without the consent of the spouse abandoned. As we said in Maloney v. Maloney, 83 Wn. 656, 145 P. 631:

“To sustain an order granting a divorce on the ground of abandonment, it must appear that there has been a voluntary abandonment of one spouse by the other, without the former’s consent, without justification, and without the intention of returning, and that such abandonment must continue for the period of one year. In other words, it must appear that the absence of the spouse accused of abandonment is not justified by the conduct of the other spouse.”

Tenorio v. Tenorio, 44 N.M. 89 (1940)

Holding that husband did not prove “abandonment” because he forcibly expelled wife from home and therefore, the “abandonment” was not voluntary.

In re Boesenberg’s Estate, 37 N.Y.S.2d 194 (1942)

Holding that the wife’s leaving husband for a trip to Europe for less than two months against his wishes did not constitute abandonment of marriage.

Wyahllyeth v. Wyahllyeth, 178 Md. 417 (1940)

Wife’s refusal to speak to husband did not constitute “marital abandonment.”

Johnson v. Dept. of Labor Industries, 3 Wn.2d 257 (1940)

Under Rem. Rev. Stat., § 7679, subd. (i), providing that a husband or wife of an injured workman living in a state of abandonment for more than one year at the time of the injury shall not be a beneficiary under the act, and that a wife living separate and apart from her husband for the period of two years who has not received or attempted by process of law to collect funds for her support shall be deemed to be living in a state of abandonment, the abandonment of the wife is not proven, where, although living separate from her husband for a number of years prior to his death, he had made payments to her until within a year of his death, which payments, although technically for the support of their minor daughter, were nevertheless an actual assistance and support to the mother; since, under a reasonable interpretation of the statute, a payment by a husband to a wife living apart and caring for their child, even though designated for the support of the child, may be deemed to be a payment for the support of the mother as well.

LA Fountain v. Industrial Acc. Com., 13 Cal.App.2d 130 (1936)

In the present case the evidence supports both desertion on the part of the wife and an absence of legal liability on the part of the husband to support the claimant. The spouses were separated. They were not living in the same home. He proposed to provide a home for her and sought to obtain a reconciliation, both of which she refused to accept. She wrote him that “We cannot live together any longer”, and she insisted on instituting annulment proceedings to cancel their marriage.