Abandonment may be actual or constructive. In family law, constructive abandonment occurs when one spouse refuses to engage in sexual relations with the other spouse for a period of one year.
In New York a party must allege and prove marital fault in order to obtain a divorce. New York Domestic relations law § 170 permits the granting of a judgment of divorce on the grounds of "abandonment". That abandonment must have occurred for at least one year prior to the commencement of the action for divorce and must be ongoing. Even though statute uses only the word "abandonment," case law has developed over the years recognizing what is commonly known as "constructive abandonment." To support a claim for constructive abandonment, a party must allege that abandonment has resulted from the other spouse refusing to engage in sexual relations for at least one year prior to the commencement of the action. By far, the most common fault based ground for divorce in New York is constructive abandonment.
The basis of a "constructive abandonment" cause of action is that since sexual relations and procreation are fundamental to the concept of marriage, failure to engage in sexual intercourse is an abandonment of the very essence of the relationship. This demonstrates a "hardening of resolve" not to cohabit as husband and wife. Accordingly, counsel should allege such a hardening of resolve as not to fulfill a basic obligation of the marriage. In addition, the spouse attempting to obtain the divorce must also show that he or she made repeated requests for relations during that year, that the other spouse refused those requests and, that there are no physical or psychological disabilities that would prevent the parties from engaging in sexual relations over that period, and that the adverse spouse's behavior is intentional and without provocation, cause or consent.