Because New York requires that when a divorce action is commenced, one of the parties must allege one of the grounds contained in Domestic Relations Law §170, many times an experienced New York Divorce lawyer will use the grounds issue as a bargaining chip. One of the grounds available to the parties is abandonment Domestic Relations Law §170(2), and specifically constructive abandonment which occurs when a spouse fails to fulfill a basic obligation arising from the marital contract. “Constructive abandonment” also refers to a cessation of sexual relations as constituting an abandonment, even though the parties may continue to live together. Diemer v. Diemer, 8 N.Y.2d 206 (1960).
In a recent decision by the Appellate Division in the Third Department, the definition of constructive abandonment has been expanded.
In Dunne v. Dunne, 47 A.D.3d 1056 (3rd Dept. 2008) the parties were married in 1976. Around 1996 or 1997, plaintiff was diagnosed with a general anxiety disorder. He was prescribed medications, including anti-anxiety and sleep medications, to alleviate his anxiety and inability to sleep. Defendant, after reading various articles on the potentially dangerous effects of such medications and noticing a hostile change in plaintiff’s demeanor, insisted that plaintiff stop taking the medications. Plaintiff’s doctor began decreasing the medications, but, as a result, plaintiff began drinking alcohol in order to cope with his increased anxiety. This led to an incident in February 2002 when plaintiff was found unconscious after excessive drinking and was taken to the hospital. In May 2002, defendant moved plaintiff’s belongings from the marital residence to an apartment which they owned. Plaintiff returned to the marital residence shortly thereafter; however, defendant demanded that he leave after she noticed the smell of alcohol. Thereafter, plaintiff sought treatment for alcohol abuse and stopped drinking. In early 2003, his doctor prescribed two prescription medications, one of which was the Benzodiazepine medicine Klonopin, to control his anxiety disorder. Although the parties engaged in marriage counseling, according to plaintiff, defendant insisted that a condition to their reconciliation was that he cease taking any and all prescription Benzodiazepine medications. In April 2004, plaintiff commenced this action for divorce on the ground of constructive abandonment. Supreme Court, crediting plaintiff’s testimony, granted the divorce. The Appellate Division affirmed. Defendant contended that plaintiff failed to establish constructive abandonment inasmuch as his exclusion from the marital residence was not complete, was on consent and was justified under the circumstances. In an action for divorce based upon constructive abandonment, the party seeking the divorce must establish that the other spouse has refused to fulfill the basic obligations of the marriage relationship for a period of one year or more, without justification or consent by the abandoned spouse. In addition, the evidence must show a ‘hardening of resolve’ by one spouse not to live with the other. Here, defendant moved plaintiff’s belongings to an apartment and demanded that he leave the marital residence. Plaintiff’s testimony established that defendant denied his repeated requests to return to the marital residence. Defendant contended that she was justified in excluding plaintiff from the marital residence until he stopped taking the Benzodiazepine medication. However, it was undisputed that plaintiff suffered from a psychological anxiety disorder. Plaintiff testified that, although he had attempted to control his condition without the use of prescription medication, his doctors advised him that anxiety disorder can only be alleviated through prescription medication. Plaintiff also testified that he had no behavioral problems with his current medications and that his anxiety is under control. Defendant’s uncompromising position that plaintiff choose to either adhere to the advice of his treating physicians or cease taking his anxiety medication in order to return to the marital residence, thereby risking his well-being, amounted to “an unreasonable condition as a term of their relationship,” which violated her marital obligation to plaintiff. It is clear from the opinion that the Appellate Division did not find defendant’s position to be reasonable.
The New York decisions on “constructive abandonment” all involve intrusions into marital privacy and disclosure of information most parties would rather keep private. The decision discussed above reinforces my opinion that New York needs to abandon its fault grounds for divorce. No-fault divorce, based upon the breakdown of a marriage, would dispense with the need for intrusions into the marital relationship. Forcing parties to accept fault or be found at fault is time consuming and costly, and generates unnecessary bitterness during the divorce process.