Litigation

Because New York State requires that aspiring divorcees prove grounds, it provides ample economic incentive for their spouses to contest those grounds. Consequently, defendants in divorce proceedings can find themselves needing to establish that they have not constructively abandoned their partners by denying them sex for over a year. The question is what evidence can they offer?

For one New York suburban man, the proof was in the pill box: G.W. elicited as evidence of his and his wife C.W.'s lovemaking his physician's testimony that he had taken Viagra' and, purportedly, that it had worked. Mr. W. also offered up as proof his 10-pill prescription for the erectile-dysfunction medication, which had only eight pills remaining. The court found that there was a credibility issue surrounding the parties' conflicting testimony, but that there was other evidence to consider, eg, the testimony of the husband's doctor. C.W. v. G.W., 01112/05. Ms. W commenced divorce proceedings, asserting three grounds for divorce, including two claims of constructive abandonment and one of cruel and inhuman treatment. Although the judge dismissed all three causes of action, he dedicated the majority of his 21-page decision to Ms. W.'s claim that her husband constructively abandoned her by withholding sex.