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Divorce Fails, Lack of Proof of Sexual Abandonment

In September of 2010, Justice Bruno, a New York State Supreme Court Judge sitting in Nassau County, heard testimony with regard to fault allegations concerning the issue of constructive abandonment in a divorce proceeding. Constructive abandonment is when one party to a marriage refuses to have sexual relations with his or her spouse for a period in excess of one year.

The wife in this case had to take the witness stand and answer many personal and embarrassing questions about her sex life.

The problem with a constructive abandonment ground for divorce is that sexual activity between husbands and wives usually takes place in the privacy of the bedroom and there are no third-parties to corroborate this type of testimony.

The plaintiff in this action, Sandra McPhee, testified that she and her husband had not had sex since their honeymoon in 1979. Unfortunately, Ms. McPhee forgot that she had two children during the course of her marriage. She later testified after her memory was refreshed that she and her husband had not had sexual relations since December, 2001. When questioned whether she had asked her husband to have sex with her since then, her response was “no”.

Justice Bruno dismissed Ms. McPhee’s case. He ruled that she failed to establish constructive abandonment by her testimony. He stated, “the plaintiff did not offer any credible evidence that the defendant’s refusal was unjustified, willful and continued despite repeated requests to resume sexual relations.”

New No-Fault Divorce Law Eliminates This Problem

The new no-fault divorce law in the State of New York only requires that a party plead that there has been an irretrievable breakdown of the marriage for a period in excess of 6 months. The pleadings to this no-fault divorce cause of action are simple. The testimony simply has to be that the parties have had a breakdown in their marriage that is irretrievable and the breakdown has lasted in excess of 6 months.

Ms. McPhee is Fortunate

Since the new law went into effect on October 12, 2010, Ms. McPhee can immediately start a new divorce case based on the irretrievable breakdown of her marriage. This time her case won’t be dismissed!

NY and Long Island Divorce Lawyers

The Law Office of Elliot S. Schlissel has been handling divorce matters for more than 30 years. We represent our clients with regard to issues involving child custody, child support, fathers’ rights, visitation, separation agreements, orders of protection, child abuse and child neglect. Should you need a divorce lawyer, contact us at 516-561-6645; 718-350-2802 or 1-800-344-6431.

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore