To obtain a divorce in New York, the party seeking the divorce must prove fault by the other party.  One of the fault grounds is “constructive abandonment”.        

The grounds for constructive abandonment can be proven when one spouse refuses to engage in marital relations with the other, without excuse or justification, i.e., impotency, for a period of one or more years prior to the commencement of the divorce action.  The Appellate Division has previously held that a spouse’s refusal to engage in marital relations on one occasion is “insufficient” to prove grounds for divorce based upon constructive abandonment.  However, it has been unclear as to how many requests must be denied for constructive abandonment to be proven. 

In B.M. v. M.M., 2009 N.Y. Slip. Op. 29235 (Sup. Ct Nassau Co. 2009), the trial court held that a husband’s refusal to have sex with his wife on three separate occasions within the period of one year was sufficient to grant the wife a divorce based upon the grounds of constructive abandonment.  The wife testified that on three separate times, she requested to engage in marital relations with the husband but he denied her requests.  The court acknowledged that sometimes it can be futile for a spouse to continually request the other to engage in sexual relations, only to be denied.  The court also recognized that when a spouse voluntarily moves out of the marital bedroom and into a separate bedroom in the home and refuses a request for marital relations, the other spouse should be relieved from the requirement to continue asking for relations.