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Court in NY Rules That Ignoring Is Not Abandonment

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By Minara El-Rahman on November 24, 2009 12:00 PM

Well it turns out New Yorkers can't divorce their spouses if they are being ignored.

The case of Davis vs. Davis decided that a husband who ignored his wife has not constructively abandoned her. Constructive abandonment is one of the fault based criteria that New York state uses for divorces. New York State is the only state that does not have no-fault divorce.

The Cause of Action

The wife filed for divorce under two causes of action: the first was for cruel and inhuman treatment and the second was for abandonment. The husband sought to dismiss the second cause of action because he claimed that the wife's complaint did not contain allegations of constructive abandonment.

The Wife's Argument

The wife argued that she was socially abandoned by her husband. The opinion states that the complaint alleges that the husband was ignoring his wife: "Rather, the complaint alleges that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her."

Husband's Argument

The husband argued that his wife's cause of action should be dismissed because his wife failed to state a cause of action in her complaint.

Court's Opinion

The Appellate Court did ont agree with the wife argued, although there were two court opinions back in 2005 that supported her cause of action. The Appellate Court agreed with the couple's trial court opinion that the wife's "social abandonment" allegations "do not support a cognizable legal theory."

The Appellate Court decided that while the other trial level courts have kept the door open on social abandonment, it is not quite as clear as constructive abandonment:
"'Social abandonment' eludes clear or easy definition, unlike traditional constructive abandonment, even if both causes of action were to be patterned upon parallel legal elements." It also went on to outline how constructive abandonment meant physical abandonment or lack of sexual relations. So, no sex can lead to constructive abandonment, but no talking doesn't count.

Looks like another reason for New Yorkers to push for no-fault divorce now!

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