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Home » Actual and Constructive Abandonment

Actual and Constructive Abandonment

In the State of New York, to demonstrate an abandonment by a spouse, a party needs to prove four elements stated below:

  • voluntary separation of one spouse from the other,
  • an intent not to resume,
  • cohabitation with lack of consent of the other spouse,
  • no justification

When there is no actual abandonment, the courts can impose an abandonment claim based on the actions of the parties. The most common acts under which the courts construct abandonment (called constructive abandonment) are as follows:

  • If a spouse locks the other spouse out of the marital home,
  • The actions of one spouse makes it impossible to live together,
  • Lack of sexual relations.

Since New York state does not recognize no-fault divorce, constructive abandonment based on lack of sexual relations is commonly used to obtain a divorce.

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