## Facts

- Husband commenced a matrimonial action seeking a divorce from wife in the Supreme Court of New York, Nassau County.
- Husband alleged **constructive abandonment** as the ground for divorce under Domestic Relations Law (DRL) § 170(2).
- The parties were separated but had **no written separation agreement**.
- The parties disputed the circumstances of the husband’s departure from the marital home and whether either spouse attempted to resume cohabitation.
- The court viewed the proof on constructive abandonment as contested and limited, in a setting where the evidentiary standard for that ground was settled.
- At the time, New York generally required proof of fault (or living apart under a separation agreement) to obtain a divorce, and proposed legislation was pending to add a no-fault ground based on irreconcilable differences.

## Issues

1. Whether the husband had presented sufficient evidence to warrant a fault-based divorce on the ground of constructive abandonment under DRL § 170(2).
2. Whether the court should decide the fault-based grounds immediately or **stay** the grounds determination in light of pending no-fault divorce legislation and the disputed evidentiary record.

## Decision

- The court **did not grant** a divorce on the existing record and **did not finally adjudicate** the asserted fault ground.
- The court **stayed** the determination of the grounds issue pending legislative action on proposed no-fault reform or further order of the court.
- The court indicated that a cursory fault determination, on a thin and disputed record, would be improper and would intensify the burdens associated with fault-based divorce litigation.

## Legal Principles

- Constructive abandonment under DRL § 170(2) requires **sufficient, specific proof** meeting established standards; a court should not award a fault-based divorce on contested, inadequate evidence.
- In constructive abandonment litigation, evidence bearing on efforts to resume cohabitation and a spouse’s refusal to continue the marital relationship is material to whether the statutory ground is proved.
- A trial court may, in the exercise of discretion and case management authority, **stay** a grounds determination where proceeding would likely impose unnecessary cost and conflict and where imminent statutory change may render a fault determination unnecessary.
- Courts may consider fairness and judicial economy when deciding whether to press forward with fault litigation that may be used to impose financial leverage or personal animus.

## Conclusion

The court paused the case at the threshold question of divorce grounds, refusing to make a quick fault finding on disputed, limited proof of constructive abandonment and staying the grounds determination while potential no-fault divorce legislation was pending.


Molinari v. Molinari, 15 Misc. 3d 1120(A) (N.Y. Sup. Ct. Nassau Cnty. 2007)