Sexless Marriage? Constructive Abandonment in a NY Divorce

Sexless marriages commonly serve as the impetus for no-fault divorces in NY. A lack of intimacy can leave one spouse feeling neglected and is typically a symptom of much greater problems in the marriage. Usually, parties don’t seek to address their sex life in court. A no-fault divorce simply requires the parties to demonstrate an irretrievable breakdown of the marriage before going their separate ways. However, for those who feel the need to vindicate their emotions in a public forum, NY law allows parties to seek a fault-based divorce in certain situations where the other spouse continually rejects their sexual advances. This is commonly referred to as constructive abandonment.

What Is Actual Abandonment in Divorce?

New York domestic relations law permits divorce on the grounds of “abandonment.” Abandonment may be actual or constructive. Actual abandonment occurs when one spouse leaves the residence without the consent of the other and without legal justification. In addition, the abandonment must have occurred for at least one year prior to the filing for divorce. It also must be ongoing.

What Is Constructive Abandonment in Divorce?

Unlike actual abandonment, constructive abandonment does not require a voluntary physical departure from the marital residence. Under New York law, constructive abandonment has been generally defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action. The refusal must be unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations.

How Do You Establish a Claim for Constructive Abandonment in New York?

To establish a claim for constructive abandonment in NY, a party must allege that the “abandonment” has resulted from the other spouse refusing to engage in sexual relations. The period of constructive abandonment must be at least one year prior to the commencement of the action.

In addition, you must show that you made repeated requests for relations during that year. You must demonstrate that your spouse refused those requests and that there are no physical or psychological disabilities that would prevent you or your spouse from engaging in sexual relations. Finally, you must show that your spouse’s behavior is intentional and without provocation, cause, or consent.

Why Do We Have Constructive Abandonment in Divorce?

The justification for constructive abandonment as a cause of action is based on the notion that sexual relations and procreation are considered fundamental to the concept of marriage. Sexual abandonment is an abandonment of the very essence of the marriage.

How Can I Defend a Claim of Constructive Desertion in New York?

If you are the one being sued for constructive desertion, you need to consult an experienced attorney to help determine your options. There are a few common scenarios where constructive abandonment is inapplicable.


Refusal to have marital relations after a party learns of their spouse’s adultery is not constructive abandonment.


A New York court will not grant a divorce if the abandonment is mutual. As a matter of law, abandonment cannot exist if the parties are living separately and apart under the terms of an agreement.


In addition, a single or vague request for resumption of sexual relations in a marriage may not be enough. For example, a spouse’s single refusal to engage in sexual relations is insufficient to sustain a claim of constructive abandonment.

How the Stepanian Law Firm Can Help You

If you are seeking a divorce due to a sexless marriage, contact Stepanian Law Firm for a free consultation. We can help you understand your options. If it comes to litigation, we will help you gather the necessary evidence to develop your case and advocate in court on your behalf. In addition, we will fight for your rights in any other related divorce issues such as alimony, child custody, and child support.


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