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Constructive Abandonment (Sexual Abandonment Denied)

constr-150x150 Justice Bruno sits in a Supreme Court located in Nassau County, New  York. Last summer he made an interesting decision on a case that was  before him. A man brought a divorce lawsuit against his wife. The grounds for divorce was constructive abandonment. (Sexual  abandonment by the spouse for a period in excess of one year).

The man testified his wife had refused to have sexual relations with him for a period of twelve years. His wife testified that she never refused to have sexual relations with him. Judge Bruno found each of the parties credible in their testimony.

In his decision, he stated, “on balance, these competing versions of the relationship of the parties in and of itself is a wash.” “Put another way, plaintiff has not established a fair preponderance of the credible evidence that there was a constructive abandonment here where there is even balance of evidence the court is required to find for the defendant.”

Civil Case Evidence Standards

In a civil case, the standard a plaintiff must prove is called a preponderance of the evidence. This can be explained as the scales of justice, with more evidence on one side than the other. This is different than a criminal case, where a case must be proven beyond a reasonable doubt and the district attorney’s office must obtain a unanimous jury decision.

Constructive abandonment issues involve what takes place in a married couples bedroom. These are almost always “he said, she said” cases.

Irreconcilable Differences

Under the new ground for divorce called irreconcilable differences, these issues are no longer significant. Under the new irreconcilable differences ground for divorce in New York, one party must simply allege that irreconcilable differences between the spouses have existed for a period of more then six months. This simplifies the grounds issue in divorce situation.

Long Island Divorce Lawyers

We are divorce lawyers and our office is on Long Island. We litigate all divorce related issues and family law issues. We deal with matters concerning orders of protection, child custody, child abuse and child neglect. We litigate annulments when appropriate. We represent individuals in high net worth divorces and we deal with issues concerning the division of property, fathers’ rights, mothers’ rights and both pre-nuptial and post-nuptial agreements. Call us if you need a divorce or family court attorney.

Britney Spears, Annulment, and Mental Illness in New York

In an effort to discuss the laws relating to having a marriage annulled in New York, it is worthwhile to bring up Britney Spears’ petition to annul her marriage signed just hours after her Las Vegas marriage. The couple tied the knot in a Las Vegas chapel Saturday morning, January 3, 2004 at 5 AM. She signed a petition to have the marriage annulled that same day, it was filed Monday morning, and a judge granted the annulment on Tuesday, January 6th. The marriage lasted about 55 hours. Las Vegas Review Journal.

The manager of Nevada Divorce and Paralegal Services said that an annulment makes it “like [the marriage] never happened in the first place.” This is not the case in New York. Here, under NY Domestic Relations Law § 7, the marriage is only void “from the time its nullity is declared by a court of competent jurisdiction,” meaning that the marriage was legally valid from the time it began until the court declares it null and void.

A judge may annul a marriage, even where the parties have children (see §§ 7 & 24), when either one of the parties meets any one of the following criteria:

  1. If a party is under age 18, then the judge may annul the marriage at his/her discretion, taking into account all of the facts and circumstances.
  2. If either party is mentally incapable of consenting to a marriage because he or she is unable to understand the consequences and significance of a marriage.
  3. If either party is physically and permanently incapable of entering into a marriage (i.e. having sexual relations). Sterility does not count.
  4. The marriage occurred through force, duress, or fraud. Fraud may be shown where one party conceals or misrepresents some fact so material to the essence of the marriage that the other party would not have entered the marriage had it known about that fact.
  5. One party has been mentally ill for five years or more before the marriage.

Britney Spears declared that the basis for her application for annulment was NRS 125.330, which allows annulment “for want of understanding.” This statute is worded very similar to New York’s, which allows annulment when “either of the parties to a marriage for want of understanding shall be incapable of assenting thereto.” New York’s law is almost the same allowing annulment when a party is “incapable of consenting to a marriage for want of understanding.” But Britney Spears said she was “incapable” of agreeing to the marriage because she and her new husband “did not know each others likes and dislikes, each others desires to have or not have children, and each others desires as to State of residency.”

I don’t think this would work in New York. Incapacity does not mean that one simply doesn’t yet know certain information about the person she is marrying. It means she is actually incapable, due to “mental illness or retardation,” of knowing what marriage really is, its significance and its consequences. Levine v. Dumbra, 604 N.Y.S.2d 207, 208 (2nd Dept. 1993). While some might claim, tongue in cheek, that Ms. Spears does suffer from some mental defect, it is doubtful that a court would find that she suffers from any actual mental illness that deprives her of the capacity to understand what marriage is. She may not have known her new husband’s favorite color, but this hardly rises to the level of incapacity to understand the nature of marriage itself.

If you need assistance with any matrimonial or family law matter, whether it be divorce, separation, child custody, annulment, adoption, or anything else, our office has over 30 years experience in these areas. So please contact our office by e-mail or call 800-344-6431 for help.

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