Constructive Abandonment

Constructive abandonment is the refusal of one spouse to engage in sexual relations with the other spouse for one year. For states that require one spouse to prove marital fault to get a divorce, constructive abandonment can be grounds. The abandonment, however, must have occurred for at least one year prior to the commencement of the action for divorce and be continuous. By far, the most common fault based ground for divorce in New York is constructive abandonment, although in 2010, New York governor David Paterson signed a no-fault divorce bill, allowing for no-fault divorce in the state of New York.

Constructive abandonment was originally considered grounds for divorce due to the societal assumption that procreation and sexual relations are "fundamental to the concept of marriage." The court expects that one spouse has made repeated requests for relations during that year and that the other spouse refused those requests. The spouse must also provide evidence that the refusing spouse does not have a physical or psychological disability which does not allow them to perform sex and their behavior is intentional and without provocation, cause or consent.