Current Reading, Divorce Denied: Social "Social Abandonment" is Insufficient Grounds in New York
Part of Johanna Grossman's recent article in Writ concering includes the following section two sections:
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'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.
Read the rest of Johanna Grossman's article at FindLaw's Writ.
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