Pursuant to New York’s Domestic Relations Law (DRL) § 170(2), abandonment constitutes one of the legal grounds pursuant to which a New York resident request a judgment of separation from his or her spouse. New York courts have consistently held that for an act of abandonment to constitute sufficient grounds for a judgment of separation under New York law, the defendant-spouse’s departure must have been: (a) voluntary; (b) unjustified; and (c) permanent.
A complaint for separation based on abandonment must allege that it was the Defendant who departed from the marital residence. Plaintiffs who allege in their separation complaints that they (rather than their spouses) left the marital residence will not succeed in obtaining separation judgments based on abandonment. They may wish to consider filing a separation complaint based on one of the alternative statutory grounds for separation, such as cruel treatment.
DRL § 170(2) does not set forth any minimum duration of the abandonment for it to support a judgment of legal separation. In contrast, DRL § 170(2), which sets forth abandonment as a ground for divorce in New York, explicitly requires that the alleged abandonment last for a continuous period of at least one year. Notwithstanding DRL § 170(2)’s lack of any minimum time period, the fact is that New York courts do consider the length of the abandonment as one of the principal factors in determining whether or not the defendant’s alleged conduct has been sufficiently unjustifiable so as to warrant a judgment of separation. If nothing else, the duration of the defendant-spouse’s absence is relevant to whether or not his or her actions were wrongful and were intended to be permanent. Accordingly, a New York separation complaint the precise duration of the abandonment.
New York continues to be the only remaining state in the United States without no fault divorce. Each year, the New York legislature considers legislation for no fault divorce. Notwithstanding calls for change by the judiciary and New York divorce lawyers, the law remains unchanged. As is the case with the DRL’s divorce grounds, the DRL’s provisions for abandonment require that a plaintiff allege “fault.” The fact that husband and wife no longer reside together in the same residence is not a sufficient basis for a legal judgment of separation. For this reason, a separation complaint should be completed with care, and specific attention must be paid to the statutory grounds.