In many states, the refusal of spouses to engage in sexual relations with their husband or wife may help establish grounds for divorce on claims such as desertion or abandonment. Other states require parties to a "no-fault" divorce, where neither spouse blames the other for the dissolution of the marriage, to refrain from sexual intercourse for a period of time before the divorce can become final.
Most states recognize spousal desertion, also referred to as abandonment, as a ground for divorce. In order to qualify, the deserting spouse must actively leave the marital home with the intent of abandoning his spouse. The period of abandonment must be for an extended and uninterrupted length of time, usually between six months to one year. As desertion requires proof of intent to abandon the marital relationship, sexual relations during the abandonment period could undermine any claims that the deserting spouse intends to leave the marriage.
Divorce on the grounds of desertion can also be granted without showing that the spouse left the family home. Under a theory called "constructive desertion," abandonment of the marriage is established by showing that the deserting spouse left the relationship without leaving the house. Willful and unreasonable withholding of sex by a spouse, coupled with other incidents of failure to perform marital duties, may be sufficient evidence to constitute constructive desertion to justify a fault divorce.
Some states, such as New Jersey, recognize extreme mental cruelty as grounds for a fault based divorce if it either poses a danger to the spouse's physical or mental well-being or the cruelty makes it unreasonable to expect the spouses to live together. Although the withholding of sex may not pose a danger to the physical well-being of a spouse, a complete failure to consummate a marriage when there was an expectation that there would be a normal sexual relationship may make it unreasonable for the marriage to continue.
No-Fault Divorce Statutes
All states permit spouses to divorce for reasons not based on a spouse's marital misconduct, known as "no-fault" divorce. Under many states' no-fault divorce statutes, the parties must live apart for a period ranging from six months to a year and certify that they have not engaged in sexual relations with each other during the separation period. Under these no-fault statutes, abstaining from sexual intercourse during separation is a requirement imposed by law to obtain a divorce, not as a separate reason for the dissolution of the marriage.
Although different from divorce, a spouse in some states may seek to have his marriage annulled, treated as if it never happened, for lack of consummation. Connecticut law, for example, permits annulment if a spouse concealed her intent before the marriage to never consummate the marriage. Similarly, New Jersey law permits annulments on the grounds of impotence if one partner refuses to consummate the marriage or fails to tell the other about a known sexual dysfunction or inability to become pregnant. A critical element in seeking an annulment is that the spouse withholding sexual relations was deceitful about her intention by misleading her husband prior to the marriage.