By Mark David Blum, Esq.
The time has come for New York’s Legislature to change the laws on divorce. Under our current scheme, married couples can only divorce under few and limited circumstances. Adultery, abandonment, conviction of a felony, and cruel and inhuman treatment are the only recognized grounds. Also available is a legal separation whereby a court grants a legal separation for a year or the spouses enter into a contract and live under the terms of that agreement for a year. Finally, the Courts recognize a form of abandonment called “constructive abandonment” which applies when one spouse refuses to engage in sexual relations despite demands therefor. New York does not have a no-fault divorce action.
In a case recently decided, Davis v. Davis, (2nd Dept. 2009 NY Slip Op 08579), one of New York’s intermediate appellate courts took the position that constructive abandonment only includes withholding of sexual relations. In Davis, insufficient grounds for a divorce were found even though the divorce complaint alleged, “that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her.”
To be granted a divorce, ‘abandonment’ as a general principal requires one party to absent themselves from the marriage for a period of at least one year. This can happen by one of the spouses moving out of the marital home or by one spouse throwing the other out of the marital home. Obviously, living together is considered a fundamental element of the marriage contract. At the same time, the Davis Court likewise recognized the special role that sexual relations play in a marriage. A sexual relationship is seen as a fundamental element of a marriage contract. Beyond that the Court refused to go.
Constructive abandonment does not extend to the withholding of an emotional relationship. It is not required to be nice to your spouse or to even spend time with them. While you can be verbally rude or withdrawn, so long as one spouse doesn’t hit the other, there is no claim for cruel or inhuman treatment.
Social interaction which is arguably just as much a part of the marriage contract as sexual relations does not reach the same platitude. One spouse can completely absent themselves emotionally from a marital relationship but so long as they remain in the residence, do not refuse sexual relations, and do not physically harm the other spouse, no grounds for divorce are found under New York law. It is difficult to fathom how a spouse can completely emotionally absent themselves from a relationship without halting sexual relations. But the burden is on the injured spouse to show repeated demands for sexual relations which were denied. Hence, in a dead marriage neither spouse may wish for a sexual relationship with the other. If that should be the case, the marriage as a matter of law, must continue.
The ability to achieve an erection and consummate a marriage is not enough to sustain that marriage. Under our current law and how Courts interpret that law, one vaginal penetration is sufficient to legally bind parties together for life; regardless of how their relationship deteriorates. There needs to be an expansion of what is perceived and recognized as being fundamental elements of a marriage contract. A marriage has to be seen as greater than just State sanctioned intercourse.
Our State Legislators have to come to terms with modernity. While divorce is not a social institution to be encouraged, we do great harm to ourselves as a society by forcing people in dead marriages to remain legally connected to one another. There needs to be room in the law for a marriage to end when one of the partners emotionally absents themselves from the relationship. Sex is not the only part of the marriage contract that makes it unique. A healthy emotional and working partnership is also fundamental to marriage. When that relationship breaks down, the parties should be allowed to end their contract and go their separate ways. It is moreso cruel and inhuman for legislators to require people to remain married to each other when there is nothing left of the relationship and the parties ignore each other. No good comes of forcing these relationships to continue. In fact, we are probably causing more harm to society by reducing the levels of productivity and happiness of individuals trapped in forced marriages.
I am fairly sure New York remains the nation’s sole holdout on not having a no-fault basis for divorce. Such a situation creates significant dangers such as those experienced by Mrs. Davis … having to remain married to someone who has emotionally absented themselves from the relationship. Also, because New York has a grounds based divorce system, parties are encouraged to dredge up the inhumanities and injustices that may have occurred between them. Finally, a grounds based divorce system also increases the costs to the parties. While us lawyers make more money under the current scheme, the end result is a lesser product for the general public. Nobody gains by forcing parties to remain married who no longer desire to be joined.
People have a right to be free of unconscionable contracts. The time has come for New York to join the rest of the nation and modernize its divorce laws. This is an election year and the Governor, the State Assembly, and State Senate seats are all up for grabs. We should demand from the candidates that they stake out a position on opening up the divorce laws. It is time that we subject marriage laws to the standard for all contracts. It is just wrong to force people to remain in a state of legal bondage to another when all the basic and fundamental elements that create a marriage are gone and dead.