What is “Abandonment” Under New York Law?
The issue in the Davis case was simple: Does “abandonment” include “social abandonment” for purposes of justifying a divorce? As the court in Davis correctly noted, courts in New York have traditionally found that the ground of abandonment existed in three situations, if they last at least one year: (1) one spouse moves out of the marital home; (2) one spouse refuses to allow the other into the home; and (3) one spouse refuses to engage in sexual relations with the other without justification and despite repeated requests. This last scenario comprises “constructive abandonment” and is a very commonly cited ground in New York divorce petitions – especially those that are likely the product of collusion. The rationale for interpreting “abandonment” in the statute broadly enough to include sexual abandonment is that sexual relations are one of the “basic obligations springing from the marriage contract.” The persistent refusal to have sex is thus a fundamental breach of the marriage contr
