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Joanna L. Grossman

Divorce Denied: "Social Abandonment" is Insufficient Grounds in New York


Tuesday, December 8, 2009

"Social abandonment" is not a recognized ground for divorce in New York, according to a recent ruling by an appellate court. According to the court's logic, the mere fact that a woman's husband has refused to eat meals with her, attend family gatherings, or otherwise interact with her in a social manner may well prove that they have "irreconcilable differences," or that they are suffering in a "dead marriage." But, the court reasoned, that does not entitle her to a divorce on grounds of abandonment – or under any other grounds – under the laws of New York, the state that is the nation's lone holdout on no-fault divorce.

The court's ruling in Davis v. Davis is a reasonable, though not inevitable, interpretation of New York's Domestic Relations law, which restricts the permissible bases for divorce to certain narrowly-defined grounds. But the ruling starkly reveals how out-of-step New York law has become, not only with the divorce law of other states, but also with modern views of marriage.

Davis v. Davis: A Failed Marriage, with No End in Sight

In the case before the New York court, Novel Davis filed for divorce against her husband, Shepherd Davis. The couple has been married and resided together for forty-one years.
Two years ago, Ms. Davis had filed for divorce on grounds of "abandonment" under New York Domestic Relations Law § 170(2), which provides that such an action can be premised on the "abandonment of the plaintiff by the defendant for a period of one or more years."

In her complaint, she alleged what amounts (or might amount) to "social abandonment" – stating that her husband refused to celebrate or acknowledge major holidays or birthdays with her; refused to "eat meals together"; refused to "attend family functions or accompany [her] to movies, shopping, restaurants, and church services"; once left her "at a hospital emergency room"; removed her "belongings from the marital bedroom"; and just generally "ignor[ed] her."

In response, Mr. Davis said, in legalese, "So what?" He argued that even if he did engage in these social refusals – and he contests many of Ms. Davis's allegations – this form of "social abandonment" is not sufficient to justify divorce under New York law.

The trial court that first heard their case ruled that the wife's "social abandonment" allegations "do not support a cognizable legal theory." Then, as noted above, the appellate court, in its recent ruling, agreed and upheld the dismissal of Ms. Davis's petition for divorce. The couple (or, perhaps more accurately, the two married individuals) thus remain legally bound to one another.

New York Divorce Law: A Historical Relic

A little history is required to understand the legal ruling in Davis and why the court felt constrained to deny a divorce, despite the evidence before it of an obviously failed marriage.

Until at least the 1960s, divorce across the United States was generally available only grounds of "fault." Divorce was a remedy granted to an innocent spouse when the other spouse has breached some essential aspect of the marriage contract. The legislature of each state dictated the specific grounds recognized by that state for divorce. Traditional "fault" grounds for divorce included adultery, abandonment, neglect, and commission of a felony. Later grounds included intemperance and cruelty.

In the world of fault-based divorce, there was no such thing – at least, theoretically speaking – as divorce by agreement, or divorce on demand. The plaintiff had to prove what he or she alleged with corroborating evidence. In reality, however, couples colluded all the time, faking evidence of fault and putting on a show for the court. Individual plaintiffs also routinely perjured themselves when describing their spouses' alleged marital misconduct.

In the era of fault-based divorce, New York was always among the strictest states in the Union. It permitted divorce only on grounds of adultery – the only "biblically" recognized justification for leaving a marriage. In other states with additional grounds for divorce, "extreme cruelty" quickly became the most popular ground, but in New York, this ground was unavailable.

This ground of "extreme cruelty" was appealing to plaintiffs -- whether or not they were colluding with their spouses to obtain the divorce -- because it was vague and amorphous, and thus it permitted courts to grant a divorce based on the idiosyncratic events of a particular marriage. Courts took advantage of the vague standard and began to interpret "cruelty" broadly to include not only physical abuse, but also emotional abuse, casting aspersions of bad character, and sexual indignities. In turn, appellate courts approved of these broad interpretations of the cruelty standard, recognizing that cruelty encompasses more than wife-beating. By 1957, cruelty was the ground that accounted for more than half of all divorces granted across the country.

Abandonment and neglect were also popular grounds for divorce in most states. Adultery was rarely cited as the basis for divorce, no doubt because it was more difficult to prove, rather than because it was an uncommon occurrence.

Beginning in the 1960s, the tides of divorce law began to turn towards no-fault divorce. California was the first state to adopt an official "no-fault" law, which permitted couples to obtain a divorce upon a finding of "irreconcilable differences." Every state eventually followed suit by adding at least one no-fault ground for divorce.

No-fault grounds can take the form of a substantive standard like California's, which does not look to see who is at fault for marital breakdown, but rather looks at whether the marriage is objectively dead. In addition, no-fault grounds can also take the form of a mandatory period of separation, which then itself serves as a ground for divorce. This type of ground simply uses living apart as a proxy for marital breakdown.

New York's Unique Approach to Divorce

New York more or less let the no-fault revolution pass it by. The state legislature did expand the state's divorce laws in 1966 to include several additional grounds of fault -- cruelty, abandonment, neglect, and felony imprisonment – as well as a separation ground. But the separation ground requires either fault or the consent of both parties. The one-year required separation period does not begin to run until a court has granted a legal separation on grounds of fault or until the couple has entered into a written agreement, filed with the court, resolving all their issues such as property division, alimony, and child custody.

If parties agree to divorce in New York, then they can pursue a separation-based divorce. But many still opt for a fault-based divorce, because it is faster and sometimes cheaper. They simply collude as to the alleged grounds and, typically, the defendant never responds to the complaint at all.

But when only one spouse wants a divorce, the situation is trickier. Without consent of the other spouse, a one-year separation is insufficient grounds for divorce. The spouse who wants out must, then, allege one of the enumerated grounds of fault. When a divorce is contested, however, the legal and factual sufficiency of the ground (or grounds) must be proven. And, as happened in the Davis case, courts in New York sometimes actually deny petitions for divorce. When that happens, the couple must, simply put, stay married until the party who wants out develops new grounds for divorce.

What is "Abandonment" Under New York Law?

The issue in the Davis case was simple: Does "abandonment" include "social abandonment" for purposes of justifying a divorce?

As the court in Davis correctly noted, courts in New York have traditionally found that the ground of abandonment existed in three situations, if they last at least one year: (1) one spouse moves out of the marital home; (2) one spouse refuses to allow the other into the home; and (3) one spouse refuses to engage in sexual relations with the other without justification and despite repeated requests.

This last scenario comprises "constructive abandonment" and is a very commonly cited ground in New York divorce petitions – especially those that are likely the product of collusion. The rationale for interpreting "abandonment" in the statute broadly enough to include sexual abandonment is that sexual relations are one of the "basic obligations springing from the marriage contract." The persistent refusal to have sex is thus a fundamental breach of the marriage contract and, like adultery, a justification for legal dissolution of the marriage.

New York courts first acknowledged "sexual abandonment" as grounds for divorce in 1926, when abandonment was grounds only for separation, not divorce. The state's highest court granted a woman a legal separation when her husband refused to consummate their marriage. Then, thirty-four years later, it ruled that sexual abandonment was cognizable as grounds for separation even if the marriage had been consummated; it could apply to a later, persistent refusal to have sex as well.

In the 1960 case Diemer v. Diemer, the court observed that marriage "involves something far more fundamental than mere physical propinquity and, as a consequence, abandonment is not limited to mere technical physical separation." The key, according to the court, is that the type of abandonment alleged must strike fundamentally at the institution of marriage.

In the nearly fifty years since that case, no appellate court has further expanded the doctrine of constructive abandonment.

Yet, Ms. Davis argued, as many commentators have, that social abandonment is a breach of similar significance. After all, what is left of a marriage when one spouse refuses to eat meals, celebrate Valentine's Day, or go out in public with the other spouse?

The answer is what separates New York divorce law so far from the rest of the nation – and it reflects a view of marriage that is outdated as well. There is no provision in New York law for the dissolution of "dead marriages." The presence of "irreconcilable differences" – the catchphrase grounds for no-fault divorce in most jurisdictions – has no meaning under New York law.

The Davis court rejected Ms. Davis's argument on several different grounds, but central among them was to avoid an end-run around New York's longstanding rejection of true no-fault divorce. The appellate courts in the state have toed a similar line with respect to divorce petitions alleging "extreme cruelty" – ruling that cruelty must go far beyond "mere incompatibility" in order to constitute legally-sufficient grounds for divorce. Mere emotional abuse, without any physical manifestation, is also insufficient grounds for divorce according to New York courts. Thus, in a pair of cases in 2001, which I have discussed in a previous column, a woman whose husband called her a "Japanese Pollack," and a woman whose husband engaged in an open extramarital affair were both denied divorces.

The Davis court also expressed concern about the vagueness of the term "social abandonment." While the ground of sexual abandonment invites evidence that might better be left private, it at least poses a relatively objective question of fact: Did they or didn't they? (And, if they didn't, did the one who wants out beg the other for sex sufficiently often to satisfy the legal requirement of "repeated requests for resumption"?)

Answering the question whether or not one party abandoned the social aspects of marriage will be more subjective, and less susceptible to a finding of fact. What degree of social interaction is sufficient? The Davis court expressed its fear of opening "a judicial quagmire of varied factual claims, defenses, and permutations that would be to the everlasting consternation of the matrimonial bench and bar." The court's concerns about the practical difficulties of a social abandonment claim seem legitimate, although courts already struggle with the similarly vague "extreme cruelty" standard.

The Davis court also rejected the argument that social abandonment is as much a breach of the marital contract as sexual abandonment is. Here, however, the court takes New York law even further away from modernity (and the law in other states). That is because the court relies on the fact that the law affords "special status" to marital sex – by, among other ways, making impotence grounds for annulment, and punishing adultery as a crime.

It is true that sex has always been legally, and socially, a fundamental -- and perhaps even defining -- aspect of marriage. But the ideal of "companionate marriage" that has taken hold encompasses other fundamental components as well, including emotional support, affection, and friendship.

The court is also simply mistaken when it states – quoting an earlier decision, Diemer -- that "sexual relations between man and woman are given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage is itself distinguished from all other social relations by the role sexual intercourse between the parties plays in it." In fact, one of the most significant developments in family law over the course of the Twentieth Century has been that marriage no longer has a monopoly on legitimate sex. To the contrary, there are a number of ways in which states (including New York) have validated sex without marriage and marriage without sex -- including the recognition of palimony claims and same-sex domestic partnerships, the decriminalization of sodomy and other forms of sex outside marriage, the rise of rights for unwed parents, and the decline of legal penalties (and stigma) for illegitimacy.

Unless the Courts Take a Broader View, New York Law Will Remain a Throwback, and Spouses Will Continue to Suffer Needlessly

The court was right, on one level, to say that the question whether to make divorce more attainable is for the state legislature. But given the number of divorce reform proposals that have languished or died there, over many years, it seems that the legislature is unlikely to take up this call to action. (I have written about some of these proposals in a previous column.)

Moreover, the court was not completely restricted as to what it could do in the Davises' case. It had a chance to act – a chance it should not have passed up. Even given the existing legislative language, the court could have taken a broader view about the type of misconduct that strikes at the heart of a marriage.

Thus, the court missed a real opportunity here. If other New York courts continue to take similarly crabbed views, New York will remain a state that, for couples like the Davises, transforms the bonds of marriage into shackles.

Joanna Grossman is a professor and the John DeWitt Gregory Research Scholar at Hofstra Law School in Hempstead, New York. She has also taught at Vanderbilt, UNC-Chapel Hill, Cardozo, and Tulane. She is an expert in sex discrimination and has written extensively about workplace equality, with a focus on issues such as sexual harassment and pregnancy discrimination. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her research also focuses on family law, with particular emphasis on same-sex marriage and the history of divorce. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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