Justice Abandoned: Forty Years of
Stalemate in Actions for Divorce on the
Ground of Abandonment
The Honorable Sondra Miller*
Abandonment has been a ground for judicial separation in
New York since 1813.
It became one of the six causes of action
for divorce enacted by the Legislature in the Divorce Reform Act
To obtain a divorce upon this ground, the plaintiff
must prove “abandonment . . . by the defendant for a period of
one or more years.”
The Divorce Reform Act of 1966 was the result of a “search-ing
investigation of New York State’s matrimonial and divorce
laws” conducted by the Joint Legislative Committee on Matri-monial
and Family Laws in 1965 and 1966.
recognized that there was “widespread fraud, collusion and per-jury
in matrimonial actions and proceedings” because the sole
cause of action for divorce at the time, adultery, was more often
than not a fiction jointly promulgated by parties who had no
other means of obtaining a New York divorce. One of the Com-mittee’s
stated goals was “revision in the laws, jurisdiction,
rules, operations and practices designed to improve the admin-istration
of justice and to preserve the marital relationship and
the family unit.”
* Dolores Gebhardt is a partner and the Honorable Sondra Miller is Chief
Counsel to McCarthy Fingar LLP, White Plains, New York. The authors grate-fully
acknowledge the invaluable assistance of Fatima Silva, Pace University
School of Law Class of 2008, in obtaining research for this Article.
1. Erkenbrach v. Erkenbrach, 96 N.Y. 456 (1884); J. Legis. Comm. on Matri-monial
and Family Laws, No. 8, at 87 (N.Y. 1966).
REL. LAW § 170(2) (McKinney
2. L. 1966, c. 254, § 2, codified at N.Y. DOM. 2007).
REL. LAW § 170(2) (Consol. 1966). Originally, the cause of action
3. N.Y. DOM. did not accrue for two years; this was reduced to one year effective September 1,
See L. 1970, c. 835, § 1.
1972. 4. J. Legis. Comm. on Matrimonial and Family Laws, No. 8, at 13 (N.Y. 1966).
Id. at 9.
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The Committee heard testimony describing “desertion of
the family” by one spouse as “the poor man’s divorce.”
Committee found that “repressive divorce laws contribute to
family instability because where the law is unreasonable and
unrealistic, self help becomes socially acceptable.”
was a recommendation “for broadening the grounds for divorce
in New York to include abandonment or desertion.”
The courts have lost sight of the ideals and goals of the
Joint Legislative Committee in the forty years since the enact-ment
of the Divorce Reform Act of 1966. The courts’ efforts to
define and describe abandonment have resulted in a compli-cated
body of case law that confuses the matrimonial bar as well
as the very courts that created it. The result is often a denial of
justice which, contrary to the Legislature’s intent, relegates the
plaintiff to a marriage that is “a mere legal formality which con-demns
the innocent party to a life of either unwanted celibacy
This State’s latest effort to reform matrimonial law is the
work of the Matrimonial Commission, headed by one of the au-thors
of this article, the Honorable Sondra M. Miller, which was
established by Chief Judge Judith Kaye in 2004. The Commis-sion’s
2005 recommendation that New York’s divorce law be
amended to provide for no-fault divorce gives the Legislature
the opportunity to review and expand upon the Joint Legisla-tive
Committee’s groundbreaking work.
This article will critically review the law of abandonment,
discuss a recent decision of the Appellate Division, Second De-partment
that demonstrates the courts’ deviation from legisla-tive
intent, and urge the enactment of no-fault divorce as
recommended by the Matrimonial Commission.
I. The Law of Abandonment
The Domestic Relations Law does not define “abandon-ment,”
nor are there any defenses in the statute that might
6. Id. at 45.
Id. at 46.
7. Id. at 88.
8. 9. Cavallo v. Cavallo, 359 N.Y.S.2d 628, 630 (Sup. Ct. 1974) (quoting J. Legis.
Comm. on Matrimonial and Family Laws, No. 8, at 87 (N.Y. 1966)).
10. McCarthy Fingar, LLP represented the plaintiff in this case.\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 3 23-OCT-07 11:02
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serve to illustrate the term. Due to its beginnings as a ground
for separation, much of the case law concerning abandonment
as a cause of action for divorce developed within the context of
As will be demonstrated, the courts have
since expanded considerably on this old case law.
Abandonment can take one of several forms: physical de-parture
from the marital home, the exclusion from the marital
home of one spouse by the other, and constructive abandon-ment,
which itself can take multiple forms.
A. Departure From the Marital Home
The classic form of abandonment, also called desertion, has
been described as: “a voluntary separation of one party from the
other without justification, with the intention of not
1. The Departure Must be Voluntary and Unjustified
The essential elements of the cause of action require that
the abandonment be voluntary and unjustified. In other words,
the plaintiff must prove that the defendant intended to abandon
him or her, and that the defendant had no justification for doing
so. The latter is also a requirement in an action for separation,
and is based on the same legislative concern that the plaintiff
wife will wield an abandonment action as “a device to extract
high alimony from a spouse who wished to escape the bonds of
What, then, constitutes justification?
As has long been the law in separation actions, and as the
Appellate Division, Second Department first held in 1976 in Del
Galdo v. Del Galdo, a spouse who leaves out of fear for his or
her physical safety is justified in doing so, and thus does not
abandon the other spouse.
No doubt because it did not want
to reward the abusive plaintiff spouse, Del Galdo created the
11. The sole difference between the two causes of action is that the action for a
Compare N.Y. DOM. REL. LAW
separation contains no statutory waiting period. § 200(2) (McKinney 1999) (requiring no statutory waiting period for abandonment)
with N.Y. DOM. REL. LAW § 170(2) (McKinney 1999) (requiring at least one year
statutory waiting period for abandonment).
12. Williams v. Williams, 29 N.E. 98, 98 (N.Y. 1891).
13. J. Legis. Comm. on Matrimonial and Family Laws, No. 8, at 93 (N.Y.
14. Del Galdo v. Del Galdo, 379 N.Y.S.2d 479 (App. Div. 1976).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 4 23-OCT-07 11:02
608 PACE LAW REVIEW [Vol. 27:605
affirmative defense of justification.
Although it appears that
lack of justification is more properly an element of the plaintiff’s
cause of action,
and in fact was considered such in pre-1966
actions for separation,
the Del Galdo decision has been widely
followed. It is now the accepted law of this state that where a
plaintiff makes out a prima facie cause of action for abandon-ment,
a divorce will be granted unless the defendant pleads and
proves that his or her departure was justified.
Interestingly, the Del Galdo decision does not describe the
acts of the plaintiff husband that justified the wife’s departure.
Apparently, however, they were insufficient to warrant an
award to the wife of exclusive possession of the marital
Inconsistent holdings abound in the area of justification as
a defense to abandonment. On the one hand, it has been held
that a plaintiff may not obtain a divorce on the ground of aban-donment
if he or she is guilty of misconduct sufficient to give
the defendant grounds for divorce.
However, if a spouse de-parts
and then commences a divorce action in the belief that the
defendant’s conduct constituted cruel and inhuman treatment,
but is subsequently unable to obtain a divorce on that ground
for failure of proof, the defendant cannot establish an abandon-ment.
In other words, justification can be found even if the
departing spouse made a mistake in fearing for his or her
Justification has been found on facts other than fear for
one’s safety. In one case, the defendant wife’s insistence on and
admission of a “friendship” with another man constituted justi-fication
for the plaintiff husband’s departure from the marital
16. J. Legis. Comm. on Matrimonial and Family Laws, No. 8, at 96 (N.Y.
see also, N.Y. DOM. REL. LAW § 170(2) (McKinney 1999) (regarding
1966); Scheinkman Practice Commentaries).
See, e.g., Silberstein v. Silberstein, 113 N.E. 495 (N.Y. 1916).
17. 18. James v. James, 786 N.Y.S.2d 336 (App. Div. 2004); Uzo v. Uzo, 763
N.Y.S.2d 758 (App. Div. 2003); Carpenter v. Carpenter, 718 N.Y.S.2d 105 (App.
Div. 2000); Maryon v. Maryon, 400 N.Y.S.2d 160 (App. Div. 1977).
Del Galdo, 379 N.Y.S.2d at 481.
19. 20. McNair v. McNair, 692 N.Y.S.2d 273 (App. Div. 1999).
21. Phillips v. Phillips, 419 N.Y.S.2d 573 (App. Div. 1979).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 5 23-OCT-07 11:02
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In another, the wife alleged the husband’s involve-ment
with another woman as justification for her refusal to
have marital relations with the husband or to share social and
familial activities with him.
It has been suggested that departure due to the plaintiff’s
statement that he intended to pursue a pre-existing homosex-ual
relationship may constitute justification.
has been found to be justification for abandonment.
plaintiff is incarcerated for a period of three or more years, the
defendant has his or her own grounds for divorce in any event.
The Appellate Division, Fourth Department found no justi-fication
because the wife never confronted her husband with her
evidence of his alleged extramarital affair (which the court con-sidered
insufficient in any event) or offered any reason for her
refusal to have marital relations with the husband. A hus-band’s
immature and difficult behavior does not justify the
nor does mere incompatibility.
At one time, a wife was obligated to relocate with her hus-band
to a location selected by him in good faith.
statutory correction of gender bias in 1976, the domicile of mar-ried
persons is now established without regard to sex.
an unjustified refusal by one spouse to accompany the relocat-ing
spouse constitutes an abandonment if it can be shown that
the relocation was necessary, was not arbitrary, and was made
with due consideration of the other spouse’s needs.
In her concurring opinion in James v. James, the Honorable
Sondra Miller concluded that the husband’s initial departure
from the marital residence due to the wife’s obtaining an order
22. Abramowicz v. Abramowicz, 137 N.Y.S.2d 442 (Sup. Ct. 1954); see also
Walden v. Walden, 340 N.Y.S.2d 709 (App. Div. 1973).
23. Francati v. Francati, 395 N.Y.S.2d 547 (App. Div. 1977).
24. H.H. v. S.H., 824 N.Y.S.2d 763 (Sup. Ct. 2006).
25. Johnson v. Johnson, 561 N.Y.S.2d 1018 (App. Div. 1960).
26. N.Y. DOM. REL. LAW § 170(3) (McKinney 2007).
27. Schine v. Schine, 286 N.E.2d 449 (N.Y. 1972).
28. Phoenix v. Phoenix, 340 N.Y.S.2d 977 (App. Div. 1973), appeal dismissed,
304 N.E.2d 369 (N.Y. 1973).
aff’d, 233 N.Y.S.2d 1014
29. Fox v. Fox, 186 N.Y.S.2d 542 (Sup. Ct. 1958), (App. Div. 1962); Cavallo, 359 N.Y.S.2d 628.
30. N.Y. DOM. REL. LAW § 61 (McKinney 2007).
31. See, e.g., Bazant v. Bazant, 439 N.Y.S.2d 521 (App. Div. 1981); Dornbusch
v. Dornbusch, 449 N.Y.S.2d 539 (App. Div. 1982).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 6 23-OCT-07 11:02
610 PACE LAW REVIEW [Vol. 27:605
of protection against him was not voluntary, but staying away
for the next six years was an abandonment.
could have returned after the expiration of the order of protec-tion.
Instead, he established a new household and new life.
This evidence proved his hardened resolve not to return. The
majority holding, citing existing case law, simply reversed the
trial court’s dismissal of the wife’s complaint and granted her
divorce, stating that the husband failed to raise the defense of
Where the departure is justified, the law is clear that the
spouse left behind has no cause of action based on abandon-ment.
However, neither does the departing spouse. In other
words, a spouse who justifiably leaves due to fear for her physi-cal
safety cannot obtain a divorce on the ground that she was
forced to leave.
This result makes no sense. If a spouse leaves
out of fear for her safety, but cannot meet the very substantial
burden of proof necessary to obtain a divorce on the ground of
cruel and inhuman treatment in a long-term marriage, the vic-timized
spouse is fated to remain married to her abuser. Moreo-ver,
as previously noted, the spouse left behind has no viable
cause of action for abandonment even if the departing spouse
was mistaken in her belief that she feared for her safety. Thus,
neither party can obtain a divorce under current law. This un-fortunate
result is hardly in keeping with the legislative intent
expressed in the 1966 Joint Legislative Report.
2. The Departure Must be Without the Consent of the
The abandonment must be against the will and without the
consent of the deserted spouse. A cause of action will not lie
32. James v. James, 786 N.Y.S.2d 336, 336 (App. Div. 2004).
33. Id. at 336 (citing Diemer v. Diemer, 168 N.E.2d 654 (N.Y. 1960); Pas-carella
v. Pascarella, 621 N.Y.S.2d 821 (App. Div. 1994); Maryon v. Maryon, 400
N.Y.S.2d 160 (App. Div. 1977); Del Galdo v. Del Galdo, 379 N.Y.S.2d 479 (App. Div.
34. Jeffrey v. Jeffrey, 569 N.Y.S.2d 107 (App. Div. 1991). In this particular
case, the events that caused the plaintiff wife to leave could not form the basis for a
cause of action based on cruel and inhuman treatment because they were time-barred.
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where the parties’ physical separation was consensual, because
by definition, there has been no abandonment.
3. The Departure Must be Intended to be Permanent
The plaintiff must also prove that the defendant left with a
“hardened resolve” never to return.
This is by its nature a
fact-sensitive determination. As the Court of Appeals noted in
Bohmert v. Bohmert, “[w]hat is reasonable will depend on the
circumstances of the case and the conduct of the parties.”
exclusion of evidence concerning a deserting spouse’s intent has
been held to be error.
As a practical matter, another “defense”
appears to have been created—that the defendant intended
only a temporary absence.
A significant body of case law concerns the following scena-rio:
the deserting spouse leaves, then attempts to or requests
permission to return (i.e., the spouse did not intend to leave per-manently),
and is rebuffed by the deserted spouse. Unlike the
“forced abandonment” scenario presented above in Jeffrey v.
Jeffrey, the departing spouse can turn the tables on the other
spouse and establish an abandonment if he or she is rebuffed
after asking to return.
The offer must be “timely,” i.e., the departure must not
have already ripened into an abandonment.
In other words, if
the departure looks permanent, it is permanent. If the offer to
return is found to have been untimely, the deserted spouse has
no obligation to take the deserting spouse back.
there is no bright-line test for timeliness, the amount of time
that has elapsed between the departure and the request is evi-dence
of both intent never to return and good faith.
departure followed by commencement of an action for separa-
35. Schine v. Schine, 286 N.E.2d 449 (N.Y. 1972); Hage v. Hage, 492 N.Y.S.2d
172 (App. Div. 1985); Haymes v. Haymes, 646 N.Y.S.2d 315 (App. Div. 1996).
36. Mirizio v. Mirizio, 150 N.E. 605, 607 (N.Y. 1926); Silberstein v. Silber-stein,
James, 786 N.Y.S.2d at 336; Sacks v. Sacks, 307
113 N.E. 495 (N.Y. 1916); N.Y.S.2d 177 (App. Div. 1969).
37. 150 N.E. 511, 513 (N.Y. 1926).
38. Ziegler v. Ziegler, 198 N.Y.S.2d 875 (App. Div. 1960).
39. Nicit v. Nicit, 583 N.Y.S.2d 858 (App. Div. 1992).
40. 41. Mirizio v. Mirizio, 161 N.E. 461, 462 (N.Y. 1928); Campbell v. Campbell,
aff’d, 115 N.E.2d 685 (N.Y. 1953).
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612 PACE LAW REVIEW [Vol. 27:605
tion, without more, has been held not to constitute abandon-ment
by the departing spouse.
The attempt or request to return must also be made in
If the good faith of the deserting spouse is deter-mined,
the deserted spouse has the duty to take the deserting
spouse back. An unjustified failure to do so switches the par-ties’
roles, and constitutes abandonment of the deserting spouse
by the deserted spouse.
“Good faith return” cases are also complicated because it is
sometimes difficult to determine which spouse abandoned the
other. In Gleckman v. Kaplan,
the plaintiff husband alleged
that his wife had locked him out of the marital home.
the wife changed the locks on the marital residence be-cause
the husband had left the wife seven months earlier and
established his own residence.
Thus, the husband was the
true abandoning spouse, not the wife.
The husband tried to
turn the wife’s action into an abandonment by introducing “evi-dence”
of a good faith offer to return to the wife, but the trial
court found that said offer was not an offer to resume the
spousal relationship, but merely to return on his own terms,
and thus was not made in good faith.
The court noted: “[t]he
law is clear that the plaintiff cannot maintain an action against
the defendant on abandonment grounds unless the plaintiff can
demonstrate that following his own departure from the conjugal
residence, he made a ‘good faith’ offer to resume the marriage
which was rejected by the defendant.”
Indeed, numerous other decisions concerning the validity of
a plaintiff spouse’s offer to resume cohabitation after the dis-missal
of his or her action for divorce or separation are similar:
42. Mirizio, 161 N.E. at 462-63.
43. Bohmert v. Bohmert, 150 N.E. 511, 513 (N.Y. 1926).
44. Aghnides v. Aghnides, 127 N.E.2d 323 (N.Y. 1955); Solomon v. Solomon,
Campbell, 118 N.Y.S.2d at 17; Harlow v. Harlow, 204
49 N.E.2d 470 (N.Y. 1943); N.Y.S. 128 (Sup. Ct. 1924).
45. 626 N.Y.S.2d 549 (App. Div. 1995).
Id. at 550.
47. 48. Id.
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the plaintiff making the offer to return had been the aban-doning
party in the first instance.
What constitutes good faith in one case may not do so in
another. An unconditional offer to return has been held to be in
an offer to return merely to manage the parties’
jointly owned property has not.
Letters requesting to return
have sometimes constituted good faith,
other times, they have
been considered a mere litigation tactic and are “entitled to lit-tle
weight as evidence of an honest desire to live” with the de-serted
A return made without a demonstration of a
willingness to reassume the obligations of marriage does not ev-idence
The Appellate Division, Third Department appears to re-quire
a spouse to make repeated requests to return. These cases
confuse a good faith offer to return with an action for construc-tive
abandonment, which will be discussed below. For example,
in Relyea v. Relyea,
the plaintiff husband pleaded abandon-ment
and constructive abandonment as a cause of action for di-vorce.
The basis was the wife’s insistence that he vacate the
parties’ farm. He moved in with another woman but periodi-cally
returned to the farm to do work there. The husband testi-fied
that he made one request to resume marital relations with
the wife. His failure to make multiple requests was held to be
insufficient to prove a claim of constructive abandonment, i.e.,
an unjustified refusal by one spouse to engage in marital rela-tions
with the other. In so finding, however, the court blurred
the separate concepts of a good faith offer to return (abandon-ment)
and spurned requests to resume marital relations (con-structive
51. See, e.g., Aghnides, 127 N.E.2d 323; Bohmert v. Bohmert, 150 N.E. 511,
513 (N.Y. 1926); Campbell v. Campbell, 118 N.Y.S.2d 17 (App. Div. 1952) N.E.2d 685 (N.Y. 1953); Kenneson v. Kenneson, 36 N.Y.S.2d 676 (Fam. Ct.1942).
52. Williams v. Williams, 29 N.E. 98 (N.Y. 1891).
53. Gleckman, 626 N.Y.S.2d 549.
54. Campbell, 118 N.Y.S.2d at 17; Harlow v. Harlow, 204 N.Y.S. 128 (Sup. Ct.
55. Bohmert, 150 N.E. at 513; Erlich v. Erlich, 104 N.Y.S.2d 531 (App. Div.
56. Gleckman, 626 N.Y.S.2d at 549; Gruen v. Gruen, N.Y.L.J., Jan. 15, 1993,
57. 768 N.Y.S.2d 712 (App. Div. 2004).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 10 23-OCT-07 11:02
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One year later, in Schubert v. Schubert, the blurring be-came
The Third Department affirmed the dismissal
of the plaintiff wife’s abandonment case. According the court:
“[t]o establish this cause of action, plaintiff must demonstrate
that defendant unjustifiably and without plaintiff’s consent
abandoned plaintiff for a period of one or more years and re-fused
repeated requests to resume cohabitation or conjugal
This melding of principles from abandonment and construc-tive
abandonment has further complicated and confused the
B. Exclusion from the Marital Home of One Spouse by the
Sometimes called “abandonment by lockout,” the cause of
action accrues when one spouse unjustifiably denies the other
access to the marital residence for a period of one or more years.
As the name suggests, abandonment by lockout occurs when
one spouse unjustifiably changes the locks on the marital resi-dence
or otherwise deprives the other spouse of access thereto.
C. Constructive Abandonment
In its 1926 decision in Mirizio v. Mirizio
and its 1960 deci-sion
in Diemer v. Diemer,
the Court of Appeals expanded the
concept of abandonment from a literal physical desertion to a
figurative one: the refusal by one spouse to engage in sexual
relations with the other. In identifying and describing the so-called
“constructive abandonment,” the Court of Appeals found
that “the essence of desertion or abandonment . . . is a refusal
on the part of one spouse to fulfill ‘basic obligations springing
from the marriage contract.’”
Not every refusal constitutes an
abandonment. The litmus test is: “[h]ow fundamentally the de-nial
strikes at the civil institution of marriage. Where primary
58. 823 N.Y.S.2d 282 (App. Div. 2006).
Id. at 283.
59. Schine, 286 N.E.2d 449; Soldinger v. Soldinger, 799 N.Y.S.2d 815 (App.
60. Div. 2005).
61. 150 N.E. 605 (N.Y. 1928).
62. 168 N.E.2d 654 (N.Y. 1960).
Id. at 657 (quoting Mirizio, 150 N.E. at 607).
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rights and duties are involved, where the denial goes to one of
the foundations of marriage, it is the policy of our law to allow a
separation from bed and board.”
Because sexual relations be-tween
spouses are an integral part of marriage, refusal to en-gage
in them is logically a breach of the marital contract.
A mere allegation that the parties did not have sexual rela-tions
is insufficient; it is the unjustified refusal to do so that
gives rise to grounds for divorce based on constructive abandon-ment.
Moreover, the plaintiff must prove that he or she made
repeated requests; a single rejected request will not sustain a
cause of action.
As previously noted, the “repeated requests”
requirement appears to have been applied in the Third Depart-ment
to the “good faith request to return” requirement in deser-tion
As in the desertion cases discussed above, what constitutes
justification is a fact-sensitive determination. Refusal to en-gage
in marital relations due to a medical condition has been
held to be justified. In Sullivan v. Sullivan,
the court held
that plaintiff husband failed to prove constructive abandonment
because the defendant wife’s refusal to have sexual relations
was due to her recent hospitalization for a heart attack, and
therefore was justified.
Refusal to engage in acts of sodomy or other objectionable
sexual conduct has also been held to be a justified refusal.
The spouse who claims to have been constructively aban-doned
must prove that the unjustified refusal to have sexual
relations continued for at least one year prior to the commence-ment
If the alleged unjustified refusal is for less than
one year, the complaint will be dismissed.
64. Diemer, 168 N.E.2d at 657.
65. Edward W.R. v. Barbara A.R., 670 N.Y.S.2d 162 (App. Div. 1998); Rossiter
v. Rossiter, 399 N.Y.S.2d 596 (Sup. Ct. 1977).
66. Silver v. Silver, 677 N.Y.S.2d 593 (App. Div. 1998).
67. 689 N.Y.S.2d 378 (Sup. Ct. 1999).
68. George M. v. Mary Ann M., 567 N.Y.S.2d 132 (App. Div. 1991).
69. Id. at 132.
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D. “Social Abandonment”
Two recent trial court decisions have expanded on the con-structive
abandonment theory of Diemer and Mirizio, and held
that a refusal by one spouse to engage in “social intercourse”
with the other spouse constitutes constructive abandonment.
In C.P. v. G.P.,
the plaintiff wife alleged that the husband re-fused
to eat a meal with her, or one that she prepared; refused
to celebrate holidays and family functions with her; refused to
sleep in the same room with her; and refused to speak to her
other than sporadically. The court found that “the very core of a
marriage is the concept of a ‘relationship,’” and held that the
husband’s conduct was a refusal to fulfill the basic obligations of
the marriage contract, and denied the husband’s motion to dis-miss
In Michaelessi v. Michaelessi,
the plaintiff wife testified to
an extended period of physical separation, never celebrating an-niversaries
together or attending social functions, and a refusal
by her husband to communicate with her even if they were in
the same place. The trial court found that “the plaintiff has
been abandoned by the defendant under any reasonable con-struction
of the term,” and denied the husband’s motion to dis-miss
It should be noted that to date, no appellate court has
opined as to the viability of a cause of action based on “social
II. The Law is Abandoned
As the foregoing discussion demonstrates, the law of aban-donment
has evolved into a convoluted quagmire that has
strayed far from the legislative mandate of 1966. The following
case is an example of what can happen to a plaintiff seeking a
divorce on the ground of abandonment in this State.
71. CP v. GP, 800 N.Y.S.2d 343 (Sup. Ct. 2005).
72. 73. 814 N.Y.S.2d 562 (Sup. Ct. 2005).
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In M v. M,
the plaintiff husband’s third attempt to obtain
a judgment of divorce in this State failed. The parties had been
married for forty-five years. In 1995, Mrs. M, in accordance
with the parties’ earlier consensual agreement, vacated the
marital residence and took up residence in the parties’ vacation
home. In 1996, the parties jointly purchased a cooperative
apartment in Westchester County, with the intention of resid-ing
there together once the marital residence was sold. Mrs. M
occupied the apartment, and, by mutual agreement, Mr. M
stayed on in the marital residence pending its sale. However,
when the marital residence was sold in 1998, Mrs. M refused to
allow Mr. M to move into the jointly-owned apartment. Mr. M
had no choice but to reside in the parties’ vacation home. After
selling the vacation home, Mr. M purchased a cooperative
apartment a few blocks from the jointly-owned apartment
where Mrs. M resided due to his wife’s continued refusal to al-low
him to live with her.
For the next three years, the parties lived apart, but shared
in family events with their children and grandchildren, vaca-tioned
together, and engaged in consensual sexual relations.
Mrs. M, however, remained steadfast in her refusal to allow Mr.
M to live with her.
In June 1999, after they had returned from a vacation to-gether,
Mr. M told his wife that he was dissatisfied with their
skewed living arrangements. When his wife continued to refuse
to permit Mr. M to move in with her, Mr. M then refused to
continue their more intimate relationship. Thereafter, Mrs. M
cut off all communication with her husband.
Feeling that he had no choice but to end this bizarre mar-riage,
Mr. M filed his first action for divorce in 2001, alleging
cruel and unusual treatment and abandonment among other
grounds. A fault trial before a Judicial Hearing Officer resulted
in the dismissal of Mr. M’s complaint. With regard to the alle-gations
of abandonment, the Judicial Hearing Officer specifi-cally
found that Mr. M failed to meet his burden of proof
because he at first acquiesced in the parties’ unconventional ar-rangement,
and then was the party who effectively ended the
75. 823 N.Y.S.2d 209 (App. Div. 2006). The names of the parties have been
omitted herein to protect their privacy.\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 14 23-OCT-07 11:02
618 PACE LAW REVIEW [Vol. 27:605
relationship. The Judicial Hearing Officer ignored the fact that
Mr. M ended the relationship because his wife refused to live
Mr. M brought his second divorce action in 2002, again al-leging
that his wife had abandoned him. After one year of dis-covery
and negotiations failed to result in a settlement
satisfactory to Mrs. M, she moved to dismiss the complaint. In
April 2003, the trial court granted the motion, finding that Mr.
M’s second proceeding was no different from his first and was
therefore res judicata. On the record, however, the trial judge
pointed out that the parties were still married, and that based
on the Judicial Hearing Officer’s decision, Mrs. M had no justifi-cation
for refusing to live with her husband, and could therefore
reestablish his residence with her.
At this juncture Mrs. M, through her counsel, threatened to
call the police if Mr. M attempted to move in with her. The trial
judge warned Mrs. M from the bench that her refusal to allow
her husband to resume cohabitation would constitute her aban-donment
of Mr. M. Mr. M’s attorney requested that Mr. M be
permitted to make an offer to return to Mrs. M. The trial judge
demurred, and issued an order estopping Mrs. M from asserting
a defense to any divorce action filed by Mr. M on the ground of
abandonment after one year’s time (hereinafter referred to as
the “estoppel order”). The estoppel order was served upon Mrs.
M with notice of entry. She failed to appeal, or to move to renew
One year later, Mr. M filed his third action for divorce, al-leging
abandonment as grounds. Relying on Mrs. M’s refusal to
cohabit with him in the jointly owned apartment, her threats to
call the police should he attempt to do so, and upon the estoppel
order, Mr. M moved for partial summary judgment on the issue
Mrs. M cross-moved to dismiss the complaint, arguing, in-ter
alia, that (i) the dismissals of the first two divorce actions
were res judicata in the instant case; (ii) the estoppel order was
not legally binding because it was based on dicta; and (iii) Mr.
M’s April 2003 offer to resume cohabitation was not made in
good faith, but was merely a litigation strategy.
Mr. M’s third action survived the motion to dismiss because
his evidence related to incidents that occurred subsequent to\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 15 23-OCT-07 11:02
2007] JUSTICE ABANDONED 619
the events upon which his first two divorce actions has been
based. The first two actions thus were not res judicata on the
The Supreme Court acknowledged that Mr. M had made
out a prima facie cause of action for abandonment. As we have
seen, according to established precedent, unless Mrs. M pleaded
and proved justification, Mr. M was entitled to a divorce. Pur-suant
to the estoppel order, Mrs. M was precluded from doing
so. In fact, she had not even pleaded justification in her
The Supreme Court refused to enforce the estoppel order
and grant summary judgment. Instead, it focused upon the of-fer
to return that was made on Mr. M’s behalf in open court.
Ignoring the fact that Mr. M was the abandoned spouse by vir-tue
of Mrs. M’s unequivocal refusal to reside with him, the Su-preme
Court found that a question of fact existed as to whether
Mr. M’s offer to return had been in good faith, apparently based
on its erroneous determination that Mr. M was the abandoning
The Supreme Court’s decision denying summary judgment
contained two irreconcilable findings: (i) that Mr. M had made
out a prima facie case of abandonment; and (ii) that Mr. M had
to make a good faith offer to return. As we have seen, an aban-doned
spouse has no obligation to request the return of the
spouse who failed to fulfill a basic obligation of marriage.
A second fault trial ensued. The sole issue before the trial
judge was whether the offer to resume cohabitation had been
made in good faith. Mr. M testified that he still loved his wife,
and wanted to resume their former happy life surrounded by
their children and grandchildren. He described how attempts
to save the marriage through counseling failed when Mrs. M
refused to attend. Mr. M made clear that he wanted a whole
marriage or no marriage, and that Mrs. M’s insistence on mar-riage
without cohabitation was what ultimately spurred him to
seek a divorce.
Mrs. M did not refute any of her husband’s testimony. She
admitted that she never intended to invite Mr. M home and
would not allow him to move back in with her.
Despite this testimony, the trial judge ruled from the bench
that Mr. M’s offer to return had not been made in good faith and\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 16 23-OCT-07 11:02
620 PACE LAW REVIEW [Vol. 27:605
dismissed his third action for divorce. His rationale was that
because Mr. M failed to telephone his wife or send her flowers
subsequent to his April 2003 offer to return—i.e., that he failed
to make repeated requests to return—he could not have sin-cerely
wanted to reside with his wife.
The trial judge ignored Mrs. M’s admitted refusal to live
with Mr. M and her threats to call the police. He failed to ac-knowledge
that Mr. M was the abandoned spouse.
On appeal before the Appellate Division, Second Depart-ment,
Mr. M’s counsel contended that Mr. M was the aban-doned
spouse because Mrs. M refused to cohabit with him, and
threatened to call the police if he tried to move into their jointly
owned apartment. Mr. M, therefore, had no obligation to make
an offer to return to Mrs. M. Even if he had such an obligation,
Mrs. M’s admission at trial that she would not take him back
rendered such an offer a fruitless waste of time, and that Mrs.
M’s refusal to reside with her husband constituted a refusal on
her part to fulfill a “basic obligation springing from the mar-riage
contract,” citing Mirizio and Diemer.
Unpersuaded, the Appellate Division affirmed the trial
court and found that Mr. M’s third complaint had properly been
Mr. M’s sad plight is due in part to the confusing state of
the law on abandonment, but more clearly on the courts’ errone-ous
view of the uncontroverted essential facts of this case. Had
Mr. M been the abandoning spouse, he would have the burden
of establishing a good faith effort to return to the marriage and
the marital residence. However, if he established that he was
the abandoned spouse, and sought a divorce on those grounds,
he had no such burden; the burden would then be on Mrs. M—
the abandoning spouse—to both plead and prove justification in
The essential facts in this case regarding the critical issue
of who is the abandoning and who is the abandoned spouse are
uncontroverted. The parties’ initial separation, some ten years
ago, was consensual—an arrangement effected for practical rea-sons,
i.e. the sale of their primary residence and joint purchase
of a new residence. Also uncontroverted was the fact that for
three years, they continued their marital relationship, except
for residing together. It was when Mr. M, tired of the ambigu-\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 17 23-OCT-07 11:02
2007] JUSTICE ABANDONED 621
ous lifestyle he had accepted, sought to reside with his wife and
reestablish a conventional marriage that the marital wars be-gan.
Inexplicably, neither the trial courts nor the appellate
court recognized the most significant uncontroverted fact: that
on the record through her counsel, Mrs. M refused to permit his
return on threat of calling the police should he arrive at her
doorstep. Can this statement have been anything but an aban-donment
by Mrs. M? Since she never pleaded nor proved justifi-cation,
at least at that juncture the parties’ respective roles, as
well as the legal outcome, were clear.
On what legal theory was Mr. M required, as the aban-doned
spouse, to make repeated “good faith” efforts to return?
The law requires such efforts by an abandoning spouse, not an
It is on this basic issue, finding that Mr. M was the aban-doning
spouse, that the authors of this article believe the courts
erred, and as a result relegated Mr. M to a marriage in name
only. His sole recourse, at age 73, is to relocate and pursue a
divorce in a jurisdiction where he is not required to prove fault.
The injustice to Mr. M is irreparable, but is only one example of
the incalculable harm being done to families by the state of the
law in New York. In no other state in the union is it necessary
to run the gauntlet through a confusing morass of law in order
to prove fault. Only here, in New York, must one spouse have to
prove the other was wrong simply to legally terminate a mar-riage
that had effectively terminated long ago. Only here, in
New York, can parties be denied the right to end their marriage
and consigned to either a lifetime of empty misery or a move to
III. A Call for No-Fault Divorce
In 1966, the Joint Legislative Committee found that: “[t]he
[divorce] law is criticized for many reasons – that it makes a
mockery of justice in the courts; that it causes thousands of New
Yorkers to flee their own state courts in matrimonial actions;
that the law rather than promoting family stability actually
contributes toward weakening the family unit.”
76. J. Legis. Comm. on Matrimonial and Family Laws, No. 8, at 13 (N.Y.
1966).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 18 23-OCT-07 11:02
622 PACE LAW REVIEW [Vol. 27:605
Sadly, this is still the case today. Cases such as M v. M
demonstrate that obtaining a divorce in New York remains an
expensive, emotionally draining and uncertain proposition.
Each year, hundreds of people are compelled to remain in dead
or even unsafe marriages because they cannot meet strict, ar-cane
and tortured standards of proof.
In 2005, the Matrimonial Commission Report recom-mended
that no-fault divorce be enacted to curb the social ills
and injustice inherent in fault-based divorce. Specifically, the
Substantial evidence, derived from the public hearings held by
the Commission and the professional experience of the Commis-sion
members, leads us to conclude that fault allegations and
fault trials add significantly to the cost, delay and trauma of mat-rimonial
litigation and are, in many cases, used by litigants to
achieve a tactical advantage in matrimonial litigation.
Recently, the Honorable Robert A. Ross of the Supreme
Court, Nassau County quoted an excerpt from the Miller Com-mission
Report in a controversial decision that highlights the
growing frustration of the bench, the bar and the litigants with
this State’s antiquated system of fault-based divorce. In
Molinari v. Molinari
the parties had been physically sepa-rated
for nearly two years at the time of their fault trial. The
plaintiff husband had moved out, and thus was the abandoning
party. His ground for divorce was constructive abandonment;
specifically, that his wife had unjustifiably refused his repeated
requests for marital relations.
Judge Ross noted that over a period of over two years:
“[w]hile litigating the issue of grounds, these parties were rele-gated
to motion practice, amendment of pleadings, contempla-tion
of withdrawal of the action and seeking a divorce in
another jurisdiction, filing jury demand, conferences, and ulti-mately
trial of the matter.”
It is clear from the decision that Judge Ross considered the
husband’s evidence to have been insufficient to support a find-
77. MATRIMONIAL COMMISSION, REPORT TO THE CHIEF JUDGE OF THE STATE OF
NEW YORK 18 (February 2006), available at http://www.courts.state.ny.us/reports/
matrimonialcommissionreport.pdf, available here as Appendix A.
78. 15 Misc.3d 1120A (N.Y. Sup. Ct. Apr. 16, 2007).
Id. at *3.
79.\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 19 23-OCT-07 11:02
2007] JUSTICE ABANDONED 623
ing of constructive abandonment. In an effort to find a means to
grant the divorce, Judge Ross noted that in every other state in
the union, the husband would have been granted a divorce sim-ply
by virtue of the parties’ physical separation. He continued
that a bill is pending in the State Assembly, Bill AO3027, by
which “irreconcilable differences” would be added as a ground
for divorce, and expressed his firm belief that no-fault divorce
must come to New York via “legislative determination, and not
Interestingly, Judge Ross noted that the judiciary is
charged with the responsibility of protecting the constitutional
rights of the citizens of New York State, and strongly hinted
that the current fault-based statute could come under constitu-tional
scrutiny in a proper case. The Molinari matter was not
such a case, as the husband failed to give the required notice of
a challenge to the constitutionality of the statute to the Attor-ney
General. Judge Ross concluded that “[t]he constitutional is-sues
are, at this point, premature, but nonetheless are
Finding it to be a “fulfillment of a constitutional responsi-bility,”
Judge Ross held his decision in abeyance and retained
jurisdiction in order to give the Legislature the opportunity to
act on Bill AO3027.
He directed that financial discovery in the
case continue in order to avail prejudice to either party by the
stay. A copy of the April 16, 2007, decision was served upon
Governor Elliot Spitzer; Attorney General Andrew Cuomo; au-thor
of Bill AO2027, Helen Weinstein; John DeFrancisco, the
Chair of the State Senate Judiciary Committee; Assembly
Speaker Sheldon Silver; and State Senate Speaker Joseph
Justice Ross’s unprecedented decision was front-page news
in the New York Law Journal.
Two weeks later, on April 30, 2007, Justice Ross issued his
second decision in Molinari v. Molinari. This time, he noted
that the Civil Practice Law and Rules (CPLR) require that a
80. Id. at *10.
Id. at *7-*8.
81. Id. at *15.
82. Divorce Ruling Awaits Action in Legislature, N.Y.L.J. at
83. Joel Stashenko, 1, col. 1 (April 19, 2007).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 20 23-OCT-07 11:02
624 PACE LAW REVIEW [Vol. 27:605
court’s decision be rendered within sixty days after the cause is
There was insufficient time for the legisla-ture
to consider and act upon Bill AO3027 before a final deci-sion
had to be rendered to avoid running afoul of the CPLR.
Judge Ross then granted the wife’s motion to dismiss the
husband’s complaint for failure to prove constructive abandon-ment.
There was no evidence that the husband’s requests for
marital relations were repeated, or that these requests were un-justifiably
rejected by his wife. In particular, Judge Ross found
that the fact that the husband had vacated the parties’ home
and abandoned the wife “renders the purported repeated re-quests
by the [husband] to resume relations incredulous.”
At the time of this writing, no-fault divorce has yet to be-come
a reality despite the efforts of the Honorable Sondra
Miller and various bar associations to urge legislative enact-ment
of no-fault divorce via the Post-Miller Commission Com-mittee
for Change. As to the fate of erstwhile plaintiff Mr.
Molinari, according to his attorney, he is likely to seek a divorce
in New Jersey, a no-fault state to which he relocated over one
Unbelievably, the sole recourse for both Mr. Molinari and
Mr. M – relocation to a more hospitable state in order to termi-nate
a dead marriage – was the same fate of thousands of New
Yorkers forty years ago. In fact, the practice of seeking divorces
in other states was condemned as “encourag[ing] the commer-cialization
of divorce,” and was one of the reasons for the find-ings
of the Joint Legislative Committee, which led to the
enactment of the Divorce Reform Act of 1966.
We have come
full circle. The groundbreaking work of the Joint Legislative
Committee, as well as justice for New York families, has been
No-fault divorce is the logical extension of the New York
Legislature’s intent, expressed forty years ago, to broaden the
grounds for divorce in order to provide justice for the families of
84. CPLR § 4213(C).
With Long Wait Ahead for No-Fault, Judge Denies Divorce, N.Y.L.J. at 1,
85. col. 1 (May 3, 2007).
86. 87. J. Legis. Comm. On Matrimonial and Family Laws, No. 8, at 21, 37-39
(N.Y. 1966).\\server05\productn\P\PLR\27-4\PLR405.txt unknown Seq: 21 23-OCT-07 11:02
2007] JUSTICE ABANDONED 625
this state. Its enactment would inure to the benefit of litigants
such as Mr. M, whom this State has condemned to be forever
bound to a woman who does not want to live with him. After an
auspicious start forty years ago, the law of abandonment has
returned to the pre-1966 days, when desertion of families and
out-of-state divorce actions offered the only possibility of a mod-icum
of freedom. This Legislature has the opportunity to signif-icantly
reduce expense and trauma in matrimonial actions. We
urge the Legislature to act.