When one spouse wants a divorce and the other doesn't, things can get very messy. To prevail in a contested divorce, one spouse must prove a legal reason - "grounds" - and that means they must produce evidence that supports a claim of, for example, marital infidelity, or mental or physical cruelty.
In the messiest of these cases, a judge may not have much more evidence than the conflicting oral testimony of the spouses. But in one Westchester, N.Y., case, it was an oral medication that tipped the scales of justice in favor of a man who is fighting to stay married to his wife.
In a case styled C.W. (the husband) vs. G.W. (the wife), Westchester Supreme Court Justice William J. Giacomo found that the wife's claim of constructive abandonment- one partner's denial of sex to the other for a year - was disproved by the husband's evidence that he had taken, and presumably successfully used, the drug Viagra.
The W's were married in 1982 and have two children; she commenced divorce proceedings in January 2005 with two claims of constructive abandonment and one claim of cruel and inhuman treatment.
In testimony, Mrs. W. told of unromantic vacations and unreciprocated romantic overtures. She also described that after her husband's radical prostatectomy he had taken Viagra "on occasion" but that the couple had not had sex since July 2003.
But Mr. W. - who objects to the divorce for religious reasons - fought back, saying the couple had made love at least once, seven months before she filed her complaint.
"In support of this contention, defendant testified that of the four-pill sample of Viagra 100 mg. given to him by (his physician) and the 10-pill Viagra prescription ... filled in July 2003, six pills have been used since April 2003," Justice Giacomo wrote.
The court admitted that while this evidence was less than incontrovertible proof, it was at least more credible than Mrs. W's verbal testimony. Therefore, the court dismissed all three of Mrs. W's claims.
Mrs. W. is planning to appeal.
This is a pretty unusual case, given that spouses don't usually contest a claim of "constructive abandonment" - or, if they do, they don't have evidence any stronger than their own say-so. In states like New York, which does not have a "no fault" divorce law, a claim of constructive abandonment can be used by spouses who mutually agree to a divorce and want a simple way out of the marriage.
When couples divorce in non- "no fault" states, it often means they must air out their dirty laundry in public or get involved in convoluted (and expensive) legal struggles to prove their grounds for divorce. A claim of "constructive abandonment," however, can be an "escape hatch" of sorts. It allows both couples to admit that they haven't had sex in a year, but without having to admit reasons why that may be even more embarrassing: such as the fact that one of them has been unfaithful, or physically or mentally cruel.
Some so-called "defenders of marriage" want to eliminate "no fault" laws in other states, reasoning that doing so will reduce the divorce rate. It just might, since it would force couples into revealing what could be very embarrassing facts about their relationship which could cost them their social or professional standing. And even if shame is not a factor, a couple might still be intimidated by the thought of spending a small fortune to meet the legal standards required to prove a specific grounds for divorce.
This is wrong-headed in my opinion. These "defenders of marriage" should be thinking about the quality of the relationships they want to save. If there is a marriage in which one spouse has been unfaithful, and the other spouse is more embarrassed by that fact than the infidelity itself, then it seems to me that the marriage isn't worth saving. And it seems downright cruel to make unsuitable couples remain married simply because they cannot afford the legal expenses necessary to prove the grounds that support their claim for divorce.
That's why it is good to have alternative grounds for divorce, such as constructive abandonment. But if modern pharmacology can provide one spouse with evidence to close even that "escape hatch," then all couples face the prospect of being legally sealed into a marriage that exists only in the legal sense.
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