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Abandonment as a Ground for a Judgment of Legal Separation under New York Law

Pursuant to New York's Domestic Relations Law (DRL) § 170(2), abandonment constitutes one of the legal grounds for a judgment of separation.

New York courts have consistently held that for an act of abandonment to constitute sufficient grounds for a judgment of separation, the defendant-spouse's departure must have been: (a) voluntary; (b) unjustified; and (c) permanent. The Plaintiff must allege that it was the Defendantwho departed. Sacks v. Sacks, 26 A.D.2d 575 (2nd Dept. 1966). Plaintiffs who allege that they (rather than their spouses) left the marital residence will not be awarded separation judgments under this ground, and they may wish to consider one of the alternative grounds (such as cruelty).

DRL § 170(2) does not set forth a minimum duration of the abandonment for it to support a judgment of legal separation. In contrast, DRL § 170(2), which sets forth the basis of a divorce based on abandonment, explicitly requires that the abandonment last at least one year. Notwithstanding the failure of DRL § 170(2) to set forth a minimum time period, the fact is that New York courts do look to the length of the abandonment as one of the principal factors in determining whether or not the defendant's alleged conduct justifies a judgment of separation under New York law. If nothing else, the duration of the defendant's absence is relevant to whether or not the Defendant's actions were wrongful and intended by him or her to be permanent.

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