Can Social Abandonment By A Spouse Be Sufficient As Grounds For Divorce?

While New York continues to be the last state that insists upon fault-based divorce, that has not stopped various attempts to broaden present grounds for divorce available under the Domestic  Relations Law.  In a recent decision, Davis v. Davis, 2009 N.Y. Slip. Op. 08579 (2nd Dept. 2009), the Appellate Division, Second Department, held that “social abandonment” of one spouse by the other, does not meet the definition of constructive abandonment, and can not be used as grounds for divorce.  This case demonstrates why divorce lawyers and their clients, here in Rochester and elsewhere in New York, can be in situation where they cannot get their clients divorced, despite significant breakdowns in marital relationships.

In Davis, the wife alleged that the husband refused to engage in social interaction with the wife by:

refusing to celebrate with her or acknowledge Valentine’s Day, Christmas, Thanksgiving, and the wife’s birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife’s belongings from the marital bedroom, and by otherwise ignoring her.  The parties have been married for 41 years and they reside at the same address.

The above claims were included as a part of the wife’s cause of action for constructive abandonment.  The husband filed a pre-answer motion pursuant to CPLR §3211(a)(7) to dismiss the constructive abandonment cause of action and, alternatively, moved for summary judgment dismissing that cause of action. The husband, while contesting many of the wife’s factual allegations of “social abandonment,” argued that the complaint fails to state a cause of action for a divorce based on “constructive abandonment.”

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.”   The essence of abandonment is the refusal of one spouse to fulfill “basic obligations springing from the marriage contract”.  The court noted that a viable cause of action under Domestic Relations Law §170(2) has been recognized in three different factual forms: (1)  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; (2) the defendant spouse locks the plaintiff spouse out of the marital residence, absent justification or consent;  (3) “constructive abandonment,” which has been 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.

the complaint alleges that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine’s Day, Christmas, Thanksgiving, and the wife’s birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife’s belongings from the marital bedroom, and by otherwise ignoring her. The parties have been married for 41 years and they reside at the same address.
The husband filed a pre-answer motion pursuant to CPLR 3211(a)(7) to dismiss the constructive abandonment cause of action and, alternatively, moved for summary judgment dismissing that cause of action pursuant to CPLR 3212. The husband, while contesting many of the wife’s factual allegations of “social abandonment,” argued that the complaint fails to state a cause of action for a divorce based on “constructive abandonment.” The wife opposed dismissal arguing, [*2]inter alia, that social abandonment has been recognized as a ground for divorce in fairly recent trial-level decisions rendered by the Supreme Courts in Nassau, Queens, and Westchester Counties.

After analyzing the applicable case law and plain language of the statute, the Appellate Division concluded that the plaintiff’s allegations of social abandonment may appropriately be viewed as merely another way of claiming “irreconcilable differences” between spouses, that do not constitute a cognizable ground for divorce. The plaintiff’s allegations of a “social abandonment,” designed to mimic the abandonment language of Domestic Relations Law §170(2), “elevated the artificial title of the claim over the substance of the causes of action that are statutorily recognized and understood.”

The Appellate Division further noted that there are several reasons why the courts have not recognized social abandonment as a cognizable ground for divorce, including the longevity of the current definitional understanding of constructive abandonment; its concern for a judicial usurpation of legislative authority; the fact that a social abandonment of one spouse by another is a provision of the marriage contract that necessarily equates with a spouse’s refusal to engage in sexual relations.; and the practical difficulties associated with trying to define a social abandonment cause of action, and of how courts might conceptualize the cause as separate and distinct from traditional notions of constructive abandonment.  In court’s view, “social abandonment” cannot be easily defined and therefore defies consistent and easily applied definitional interpretation, resulting in the courts examining the conduct of couples on a case-by-case basis, and presenting significant variations as to “the degree of social interaction involving family events, meals, holidays, religious activities, spousal expectations, cultural differences, and communications.”

The Davis case is just one more illustration of the fact that New York needs to abandon its fault-based grounds for divorce.  No-fault divorce would significantly reduce divorce litigation and make clients’, and attorneys’, lives less frustrating.  Unfortunately, the New York Legislature has not shown much interest in this issue over the years.  What is also interesting, is that the Second Department’s position in Davis appears to be contrary to the Third Department’s position in Dunne v. Dunne, 47 A.D.3d 1056 (3rd Dept. 2008), discussed in an earlier post, which held constructive abandonment has taken place in a situation where one spouse took an 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. If forcing a party to choose between taking a medication and returning to the marital residence amounted to “an unreasonable condition as a term of their relationship,” which violated marital obligation to the husband, I believe that a refusal to participate in various activities with the spouse represents a similar violation of marital obligation.

What Is Required to Obtain Divorce On Constructive Abandonment Grounds in New York

I have previously written about New York’s grounds for divorce, including constructive abandonment.  Simply put, constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce.  Further, case law has established that the abandonment must continue despite repeated requests from the other spouse for resumption of cohabitation. When looking at divorce actions based on constructive abandonment grounds, a lawyer must make an inquiry whether spousal relations were requested, how many times, and over what period of time.   Until recently, it was not clear how many times a spouse must make such request.  The courts have held previously that “..evidence that the other spouse refused a single request to engage in sexual relations is insufficient to establish a cause of action on the grounds of constructive abandonment.”  Archibald v. Archibald, 15 A.D.3d 431 (2nd Dept. 2005).

The answer to this question has been somewhat clarified by a recent decision.  In BM v. MM, 2009 N.Y. Slip. Op. 29235 (Sup. Ct Nassau Co. 2009), the court held that a husband’s refusal to have sex with his wife three times within a year was enough to grant the wife divorce on the grounds of constructive abandonment.  The wife testified that she could remember three occasions where she made such requests which the defendant denied and the court credited her testimony. The husband argued that since the wife had made no attempt during the last five years to have sex with him, the grounds for constructive abandonment were not established. The court held that it has recognized that there comes a time in such relationships where it would clearly be futile for one spouse to continue to ask the other to engage in sexual relations. It further found that where the defendant, on his own, moved out of the marital bedroom and into a room on a separate floor and refuses a request, after that the plaintiff should be relieved of any requirement to continue to ask for sexual relations.

The above facts demonstrate that a New York divorce lawyer must be prepared to present specific factual testimony in order to obtain a divorce on the grounds of constructive abandonment. Unfortunately, it also demonstrates that in order to establish constructive abandonment grounds in New York, requires 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.

Divorce, Equitable Distribution and Marital Fault

I am often asked whether as a lawyer, I am able to persuade the court to divide the parties’ assets unequally in situations where one of the parties had an affair, engaged in some acts of domestic violence, or committed repeated acts of verbal and emotional abuse. In nearly every case, my response is that in most of the cases, marital fault is irrelevant to the equitable distribution issues.

The New York State Legislature, in 1980, enacted the Equitable Distribution Law (“EDL”) (codified as Domestic Relations Law § 236 B). The adoption of which had been advocated because the traditional common law theory of property resulted in inequities upon the dissolution of a marriage. The EDL was premised on the entirely new theory that a marriage is an economic partnership to which both parties contribute as spouse, wage earner or homemaker, and mandates the equitable distribution of marital assets based upon the circumstances of each particular case. Under the EDL, the distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-enumerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home. Domestic Relations Law §236(B)(5)(d) lists 13 factors to be considered when making an equitable distribution award, which factors encompass, among other things, the income and property of each party at the time of the marriage and at the time the divorce action was commenced, the duration of the marriage, the age and health of the parties, a maintenance award if one had been issued, and the non-titled spouse’s direct or indirect contributions to the marriage.

It is now recognized that marital fault may be taken into account under the EDL’s “catchall provision,” which allows for the consideration of “any other factor which the court shall expressly find to be just and proper” (DRL §236[B][5][d][13]). The criteria which must be considered when evaluating whether marital fault should play a role in any particular case were first stated by the Appellate Division, Second Department, in Blickstein v. Blickstein, 99 A.D.2d 287, appeal dismissed, 62 N.Y.2d 502 (1984), which stated that the “marital misconduct [must be] so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship – misconduct that shocks the conscience’ of the court thereby compelling it to invoke its equitable power to do justice between the parties” (Id. at 292). This guideline was explicitly adopted by the Court of Appeals in O’Brien v. O’Brien, 66 N.Y.2d 576, 589-590 (1985).

In McCann v McCann, 156 Misc.2d 540 (Sup. Ct. 1993), the court addressed issues of marital misconduct. In McCann, a husband had married with the express promise to his wife to make every effort to have children. He subsequently refused to fulfill that promise after several years of lying, and as a result his wife became infertile because of her advanced age. The court found that, while the husband’s misconduct showed “a blatant disregard for the marital relationship” and was “morally reprehensible,” it did not constitute egregious marital conduct sufficient to be considered in equitably distributing the marital assets. To be deemed egregious, the court concluded, conduct must “callously imperil[] the value our society places on human life and the integrity of the human body”.

The only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to affect equitable distribution have involved extreme violence. In Havell v. Islam, 301 A.D.2d 339 (1st Dept. 2002), for example, the Appellate Division, First Department upheld the matrimonial court’s award of more than 95% of the marital estate to a wife where her husband beat her with a barbell and a piece of pipe, thereby breaking her nose, jaw and some of her teeth, causing multiple contusions and lacerations, along with neurological damage and other serious injuries. While the husband pleaded guilty to first-degree assault on his wife, the First Department accepted the lower court’s finding that the husband’s attack amounted to attempted murder and constituted egregious marital fault. Egregious fault has also been found in instances of rape, kidnapping , and protracted and severe physical abuse.

Conversely, conduct that courts have found not to be egregious include adultery , alcoholism, abandonment , and verbal harassment coupled with several acts of minor domestic violence.

A recent example of how high this standard is set, was demonstrated in Howard S. v. Lillian S., 2009 N.Y. Slip Op 01880 (1st Dept. 2009). In Howard S., the wife allegedly misrepresented to her husband that he was the biological father of one of their children, when in fact the child was conceived during her adultery and fathered by her lover.

The husband married the wife in May 1997 and they had four children. In February 2004, the wife had an extramarital affair with an unnamed man and became pregnant with a child, who was born in December 2004. Husband contends that the wife knew or should have known that husband was not the child’s biological father, but concealed that information from him.

According to the complaint, in February 2007, the wife began another affair which “continues to this day.” Wife also concealed this second adulterous relationship from husband, but in the spring of 2007, suggested that they separate and enter into a collaborative law process.

During this period husband had become suspicious about child’s parentage, allegedly due to all the jokes within the circle of family and friends that the child looked nothing like him. Without telling his wife, the husband, in February 2008, arranged for a DNA test of himself and the child. The test confirmed that he was not the child’s biological father. The wife now acknowledges that husband is not the child’s biological father, but claims that she learned this from the DNA test results and denies that she deliberately concealed the truth about the child’s parentage from her husband.

The divorce complaint filed by the husband asserted causes of action for divorce based on both cruel and inhuman treatment and adultery, and asserts a separate claim based on fraud. As damages for the fraud claim, husband seeks to recover his child support expenses for the child, the fees for the parties’ collaborative law process, and profits from the couple’s investments from the time of child’s conception until the commencement of the divorce action.

In May 2008, husband moved for “expanded discovery” to prove “defendant’s egregious fault,” the fraud claim, and her lack of contribution to and dissipation of the marital property. The lower court limited the recoverable damages to husband’s share of the fees for the collaborative law process. The court also denied the husband’s request for expanded discovery as to wife’s marital fault on the ground that her alleged misconduct did not constitute egregious fault and had no bearing on prospective spousal maintenance and equitable distribution. The husband appealed on the grounds that the court (1) erred by holding that he had failed to state a claim for egregious fault and (2) erred by holding that he could not recover child support payments and certain real estate investments as damages for his fraud claim.

The Appellate Division held that while the wife’s alleged misconduct could not be condoned and was clearly violative of the marital relationship, it did not rise to the level of egregious fault, since she neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them.

In view of the cases cited above, this result was almost certain from the beginning. As painful and harmful lies and deceit in a marriage may be, and Howard S. is as egregious of a case as I have ever seen, unless there was a significant violence between the parties, the court would not alter equitable distribution on the basis of marital fault. At the same time, New York’s equitable distribution principles do not require equal distribution, if other factors of the EDL can be satisfied. If you in a situation where you are dealing with these issues, and considering divorce, I suggest that you speak with an experienced New York divorce lawyer.

Abandonment and Basic Obligations Arising Out of Marital Contract

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.

Pending Bill in New York Assembly With Respect to Divorce and Child Support Standards Act

There is a bill pending in New York Legislature that could, if passed, make significant changes to New York’s laws dealing with divorce and child support. Assembly Bill A10446 represents a comprehensive effort to reform New York`s divorce and child support laws. The bill contains four major elements: (1) simplifies the grounds for divorce by replacing current grounds with no-fault grounds; (2) adopts a new approach to maintenance, referred to as post-marital income, by establishing guidelines for determining awards of post-marital income; (3)
establishes the right to counsel for a spouse who cannot reasonably afford counsel where the other spouse has obtained or can reasonably afford counsel; and (4) increases the cap on combined parental income used to determine the amount of child support from $80,000 to $500,000, as adjusted annually for any change in cost of living.

It is the last provision that is particularly interesting since there is a significant body of law holding that the $80,000 is the presumptive cap, and in order to calculate child support on combined parental income beyond $80,000, the court must explain its reasoning and provide appropriate justification for its actions in the decision. Even under the present statute, the court can determine whether or not to exceed the cap, and may consider other factors in determining the full support amount. If the bill passes, it is possible that the child support in situations involving high parental income will significantly exceed the children’s needs or any expenses associated with raising the children.

The likelihood of the bill passing into law are difficult to estimate since the bill includes provisions that would amount to a no-fault divorce. Past efforts to pass legislation allowing no-fault divorce in New York State were unsuccessful in view of significant opposition from a variety of different groups.

Basics of New York’s Grounds for Divorce

Despite the country-wide trend toward no-fault divorce, New York continues to require that the parties seeking divorce have specific grounds to do so. New York Domestic Relations Law §170 lists the six grounds for divorce. Of the six grounds, four are fault based. Marital fault means that one of the spouses has done something wrong in the context of the marriage. The four fault based grounds for divorce are:

1. The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental
well being of the plaintiff and makes it unsafe or improper for the plaintiff to cohabit with the defendant.
2. The abandonment of the plaintiff by the defendant for a period of one or more years.
3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
4. The commission of an act of adultery.

If cruel and inhuman treatment is the ground upon which the divorce action is brought, it may be based upon allegations of either physical or mental cruelty. To be a reason for divorce, the cruel and inhuman treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse, that it is not safe or proper for the parties to continue to live together. Incompatibility between husband and wife is not a ground for a divorce. Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include: physical attacks upon a spouse; constant screaming, profanity or other verbal abuse; staying away from the house too often without an explanation; publicly flaunting a relationship with another man or woman; and wrongfully accusing the other spouse of adulterous relations with another man or woman. Intentional refusal by a spouse to have sexual relations may be considered cruel and inhuman treatment where it actually has a physical effect upon divorce-seeking spouse. Alcoholism or drug addiction, or substance abuse by itself, usually is not a sufficient basis for divorce, unless the spouse becomes violent or abusive when under the influence so that the other spouse fears for his/her health and safety. Mental illness alone is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment, unless a spouse’s other behavior could be defined as cruel and inhuman treatment.

The acts or conduct on which the cruel and inhuman treatment is based must have occurred within five years prior to the commencement of the action to be considered by the court, unless it is part of a continuous course of conduct. There are no defenses to cruelty. For example, mental illness, justification or forgiveness is not a defense.

If the ground for divorce is abandonment, it make take two different forms, either actual abandonment or constructive abandonment. Abandonment usually means an actual departure of a spouse from the marital residence, without justification and without an intention to return for a period of one year or longer preceding the filing of the action for divorce. A constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce.

If the divorce action is brought on the ground of adultery, the divorce-seeking spouse is likely to face a significant evidentiary burden. Plaintiff is not permitted to testify against the defendant, and any allegations of adultery must be corroborated, i.e., there has to be a witness able to testify that the spouse who allegedly committed adultery engaged in sexual relations or sodomy with another person. Often, adultery is proven by circumstantial evidence.

The two non-fault grounds are based upon a separation of, at least, one year, pursuant to a judgment of separation or written separation agreement. Even if the parties separated for a period of one year or longer, in the absence of a judgment or an agreement executed with the required formalities such separation will not be a basis for a divorce. A separation agreement sets forth the respective rights and duties of husband and wife with respect to the custody of children, visitation rights, support payments, distribution of property, and all other matters pertaining to the marital relationship.

Certain formalities must be precisely followed, or the written agreement will not qualify as a ground for divorce. It must be signed and acknowledged. The agreement must be filed with the Clerk of the County where either spouse lives before an action for divorce may be brought. At the end of one year from the date of the agreement, either spouse may sue the other for a conversion divorce, which is considered to be a no-fault divorce.

In an action seeking a conversion divorce, the plaintiff must establish that the separation agreement was properly signed and acknowledged and was properly filed; that the spouses lived apart during the period of the agreement up to the time of the divorce action; and that the plaintiff substantially complied with the terms of the separation agreement.