One of the “fault” grounds for divorce in New York is abandonment. There are two types of abandonment – physical abandonment and constructive abandonment (or sexual abandonment). In order to plead the ground of physical abandonment in a complaint for divorce, you must establish that 1) you have been abandoned by your spouse for one year or more, 2) the abandonment was not justified (i.e. leaving for fear of safety is not abandonment), 3) the departure from the marital residence was not voluntary, and 4) the abandonment was against the will and without the consent of the complaining spouse.
To have abandonment, the abandonment cannot be mutual. In other words, where both spouses want a divorced based on abandonment, the “‘mutuality’ of the abandonment negatives an essential element of findings necessary to support divorce on grounds of abandonment”. In that situation, the parties would probably use the “no fault” ground for divorce.
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