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New York Broadens Definition of 'Constructive Abandonment'

By Myrna Felder

A recent decision in New York State, extending the present definition of “constructive abandonment” under the grounds for abandonment in New York Domestic Relations Law (DRL) ' 170(2) to include a refusal to engage in “social intercourse,” as opposed to “sexual intercourse,” merits the attention of bench and bar.

In C.P. v. G.P., NYLJ, March 10, 2005, p. 20, col. 1 (Nassau Co., Falanga, J.), Justice Anthony J. Falanga determined the husband's motion to dismiss the two causes of action alleged in the wife's complaint: the first on the ground of constructive abandonment, and the second on the ground of cruel and inhuman treatment. In denying the husband's motion, the judge provided us with a virtual primer of leading cases on the interface between these grounds and such pleading issues as the statute of limitations, condonation, specificity, continuous courses of conduct and the level of misconduct necessary to constitute cruel and inhuman treatment. This is a decision worth retaining to consult, as these issues so frequently arise.

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