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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.

Divorce Fails, Lack of Proof of Sexual Abandonment

divorce-150x1506In 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 Offices of Schlissel DeCorpo 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.

Ridiculous New York Divorce Law Promotes Dishonesty

constructive-abandonment-divorce-faultOn December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Offices of Schlissel DeCorpo has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

Picture courtesy of clemmentlaw.

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