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Being denied sex only once does not constitute grounds for divorce, no matter how bad the marriage, a Queens judge has ruled. Acting Supreme Court Justice Jeffrey D. Lebowitz found that a wife’s single “request to engage in sexual relations” was understandable given the state of her marriage, but that it also prevented the court from finding she had been constructively abandoned by her husband, as required under the state’s Domestic Relations Law. “That [the plaintiff-wife] may not have made an adequate number of requests to engage in sexual relations with her husband [to establish constructive abandonment] is understandable given her allegations that he failed to provide sufficient support for the family, lacked involvement in the lives of his children, and engaged in relationships with at least one if not more women other than his wife,” Justice Lebowitz wrote in X.J. v. F.J. “However,” he concluded, “as logical as her lack of desire to resume sexual relations with her husband may be in the context of her failing marriage, her testimony is fatal to her claim that she was constructively abandoned by her husband.” Mr. and Ms. J. had been married for over 20 years, according to Ms. J.’s attorney, Howard Yagerman of Burger & Yagerman. They had four children together before Mr. J. moved out of their house in September 2003. Ms. J. sought divorce on the grounds of constructive abandonment. As evidence of the abandonment, she testified that on at least one occasion Mr. J. rejected her request to engage in sexual relations. Mr. J. claimed the contrary, stating that Ms. J. often turned down his requests for sex. Initially, Mr. J. did not contest the divorce, which contributed to the dearth of other evidence of abandonment produced by his wife, Mr. Yagerman said. Lebowitz ruled that it did not matter which version of the facts he accepted. Under New York law, he wrote, “constructive abandonment” requires more than one rejected attempt to have sex. “It is clear that a single request to engage in sexual relations is insufficient to sustain a cause of action of divorce on the grounds of constructive abandonment,” he held, citing Silver v. Silver, 253 AD2d 756. Nonetheless, Lebowitz wrote that he recognized that a lack of additional attempts illustrated that the marriage was indeed “dead.” “[T]he fact that her testimony was lacking as to the number of times she sought to resume an intimate relationship with her husband is understandable in light of her desire to avoid remaining in a relationship with him,” Lebowitz wrote. He denied Ms. J.’s complaint, though he continued the matter for 90 days to allow Ms. J. to either file an appeal or a new complaint setting forth new grounds. “I think [Justice] Lebowitz was extraordinarily fair,” said Ms. J.’s attorney, Yagerman. The decision marks at least the second time the Queens judge has written about the problems associated with requiring a finding of fault in divorce proceedings. New York is the last remaining U.S. jurisdiction to require fault, or living apart pursuant to a legal agreement, as a predicate for divorce. LEGISLATIVE ACTION In his oft-quoted decision S.C. v. A.C., 19650/02, Lebowitz called on the state Legislature to join the modern consensus. “This court is clearly sympathetic to the situation but does not believe that its sympathy should outweigh the proper application of existing law,” he wrote in dismissing a woman’s complaint. “However, as the instant fact pattern is not unique and is repeated frequently throughout the matrimonial courts of this state, this Court believes sufficient reason exists so as to call upon the legislature to review the status of fault in this state.” This time, Lebowitz stopped short of urging the Legislature to address the fault requirement. “This Court, however, will not reissue the call to the Legislature for consideration of the issue of fault as under present legislative circumstances it would appear to be a quintessential exercise in futility,” he wrote in X.J. v. F.J. Currently, bills to authorize no-fault divorce remain trapped in legislative committees in both houses and do not appear likely to get to the floor this year. Eric L. Spinner represented Mr. J. He could not be reached for comment.

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