Abandonment or Desertion
Divorce Process in New York

How Does Abandonment Affect Divorce in New York?

Abandonment is a legal ground to obtain a fault-based divorce in New York and does not impact the divorce process as much as you might think. Below outlines generally what you should keep in mind, whether you are the one allegedly abandoning a spouse or you are the spouse who has been abandoned. First, however, let’s clarify what qualifies abandonment as a ground for a divorce in New York.

What Qualifies as Spousal Abandonment Under New York Law?

New York domestic relations law describes the fault-based ground of spousal abandonment.

The abandonment of the plaintiff by the defendant for a period of one or more years.

To establish abandonment, you must show that the spouse:

• Left for a minimum of one year;
• Left without the consent of the other spouse;
• Was unjustified in doing so; and
• Did so with the intention of not resuming the marital relationship.

To qualify as abandonment, it’s important to note that the reason the spouse leaves must be for an unjustified reason (e.g., to live with a lover) and not for a justifiable reason (e.g., for military duty). Additionally, when one spouse unjustifiably excludes the other spouse from the marital residence, without consent, for at least one year, also constitutes abandonment.

What Impact Does Abandonment Have on a New York Divorce?

There are two types of abandonment: actual and constructive.

Abandonment in its constructive form had its greatest impact on divorce prior to 2010.

New York was the last standing state to adopt no-fault divorce. Before no-fault divorce’s adoption in 2010, constructive abandonment was often alleged. To argue constructive abandonment, a spouse would argue that one or both spouses refused to have sexual relations for a continuous period of one year or more. Now that no-fault divorces have been around for more than two decades, the need for constructive abandonment has dwindled.

That said, actual abandonment continues to impact divorce––but again, that impact is not necessarily what you might think. Some would assume that if abandoned, the abandoned spouse would have an upper hand in the divorce, but that’s not always the case, at least not directly. Abandonment can affect divorce in regards to spousal support, child custody, inheritance, and property division.

Spousal Support

In cases of abandonment, we have seen spouses wait longer than necessary to seek legal assistance in the hope that the other spouse will return home. Meanwhile, the abandoned spouse may fall into financial despair, because often, it is the primary income earner who abandons the home. Further, the abandoned spouse often does not know that they have a right to spousal support during this time of financial hardship.

There is a misconception that spousal support in New York is awarded via divorce and becomes effective when the divorce is finalized. The latter is actually spousal maintenance. Spouses, even if not separated, can seek a spousal support award through family court under the Family Court Act § 412 when, while still married, the other spouse fails to meet their support obligations.

When the abandoned spouse invokes abandonment as the cause for the divorce (marital fault), the abandoned spouse will not automatically receive spousal maintenance, nor will the amount of spousal maintenance increase as a way to punish the deserter. That said, other factors used in the calculation of spousal maintenance may have been affected by the abandonment, and they could impact spousal maintenance. For example, if the abandoned spouse’s lifetime earning capacity was reduced or lost because of delayed education, training, employment, or other career opportunities, and this was due to the abandonment, then it could have an incidental impact on the issuance and amount of spousal maintenance.

Inheritance

A spouse who has abandoned the other spouse can be disqualified as a surviving spouse for inheritance purposes under Estates, Powers and Trusts Law § 5-1.2. If you are divorced, you are automatically disqualified, but the same is true if you are the spouse who deserted the other spouse. Abandonment as a disqualifier, however, has been disputed and challenged. So, it’s important to keep this in mind if you are the abandoned spouse and you don’t want your assets to go to your spouse should you die unexpectedly.

Division of Marital Property

You may hear from people that filing for divorce on the grounds of abandonment can help you get more out of a settlement. This assumes you could receive more money and/or property than what you would normally have received through the equitable distribution of marital property.

Under the Equitable Distribution Law in New York, the court, in an action for divorce, must determine the respective rights of the parties in their separate or marital property, and must provide for the disposition thereof. The Equitable Distribution Law further provides that marital property must be distributed equitably between the parties, considering the circumstances of the case and of the respective parties. However, equitable distribution of marital property does not necessarily mean equal distribution.

Therefore, obtaining a greater share of marital property will not necessarily result just because one spouse has abandoned the other. This would be possible only where you can prove that your spouse engaged in marital misconduct that was egregious and unconscionable. For example, in Blickstein v. Blickstein, the Second Department reversed a Nassau County trial decision where the court considered marital fault and awarded the wife sixty percent of the assets. The Court held that:

…as a general rule, the marital fault of a party is not a relevant consideration under the equitable distribution law in distributing marital property… This is not to deny, however, that there will be cases in which marital fault… becomes relevant and should be considered. But such occasions… will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship––misconduct that ‘shocks the conscience’ of the court…

99 A.D.2d 287 (2d Dept. 1984)(emphasis added).

Many court decisions after the Blickstein case have followed this same logic. Abandonment by itself, and as marital fault, does not meet the description of egregious or uncivilized conduct. Thus, it remains a ground for divorce but not a factor in the way marital property is divided.

On the other hand, New York’s Domestic Relations Law was fairly recently updated, per D.R.L. § 236(B)(5)(d)(14), to include domestic violence as a factor in determining the equitable disposition of property. So, if a spouse abandoned the other spouse due to domestic violence, abandonment may indirectly have an impact on the division of marital property.

Is Abandonment as a Ground for Divorce Still Relevant in New York?

As you can see from above, when a spouse is abandoned, the divorce case can get quite complex and nuanced. It may seem easier to file for a no-fault divorce. But therein lies the problem: in a no-fault divorce, the divorce cannot be finalized unless all matters related to spousal maintenance, child support, child custody, or division of property are settled. Given the nature of many abandonment cases, where communication is hard, getting those things settled can be just as difficult, if not impossible.

An experienced New York lawyer for abandonment can successfully guide you through a complex divorce and ensure your rights and interests are upheld

Call us today at (718) 942-4004 to arrange a consultation with an experienced Manhattan divorce attorney.

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How Do I File for Abandonment in New York?

Our Knowledgeable Attorney Will Guide You through the Process

To file for divorce in New York based on abandonment, as with any divorce, you must first meet residency requirements. You then file your paperwork with the Supreme Court of the State of New York in your county of residence. In your paperwork, you will indicate that you are filing on abandonment grounds. Once the appropriate paperwork is filed with the court, you must have your spouse served with the divorce papers. If your spouse receives the divorce paperwork by “personal” (i.e., in your hands) delivery, he or she has 20 days to respond. If your spouse is served by any other means (i.e., left with someone of suitable age and mind in your household, by certified mail, or by publication) he or she has 30 days to respond. If the spouse defaults, which means he or she does not respond, the divorce process continues without their input.

How Can I Serve My Spouse with Divorce Papers if I Do Not Know Where They Are?

If you have made a diligent effort to locate your spouse but have been unsuccessful, you can petition the court for a divorce by publication. If the court agrees that your efforts were made in good faith and you demonstrate that you thoroughly attempted to locate your spouse, it may approve your petition, however, this type of service is disfavored by courts and will usually only be used as a last resort.

The process for a divorce by publication involves serving your spouse with the paperwork through a notice in a publication:

1. You post a notice in a newspaper or another publication that is most likely to give notice to your spouse.
2. Notices must be published once a week for three weeks in a row.
3. If after a three-week period your spouse does not respond, the divorce proceedings may continue.

At The Levoritz Law Firm, we will help you try to locate your spouse. We will also document each step you take to find your spouse so that, in the event your efforts fail, we can use that documentation to prove your diligence to the court.

The complexities of divorcing when you have been abandoned are numerous. There are many intricate steps that must be followed to the letter of the law. Our law firm will ensure that all the steps in your divorce filing are handled correctly. Call us at (718) 942-4004 to schedule a consultation and learn what we can do for you.

Our Lawyer for Abandonment Answers Frequently Asked Questions

Divorcing on the grounds of abandonment can be confusing. Following are answers to some of the most frequently asked questions we get about the process.