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Withholding Sex As Grounds for Divorce


Withholding Sex As Grounds for Divorce

Table of Contents

Does a sexless marriage provide grounds for divorce? Can it be considered alienation of affection or constructive abandonment? We explain the legal implications for your divorce.

Let's talk about the complex and often controversial subject of withholding sex as grounds for divorce. How do various legal jurisdictions interpret and handle such cases? We'll talk about the differences between fault-based and no-fault divorce laws. By examining legal precedents, societal norms, and psychological impacts on relationships, this article explains the conditions under which sexual refusal might contribute to divorce.

Withholding Sex, Alienation of Affection, and Constructive Abandonment in Marriage: Let's Talk Definitions

A sexless marriage is commonly defined as a marital relationship in which the spouses have little to no sexual activity or intimacy with each other. While there is no universally accepted threshold for classifying a marriage as "sexless," a frequently cited definition comes from experts and studies which suggest that marriages with fewer than ten sexual encounters a year can be considered sexless. It's important to note that the definition of a sexless marriage can vary greatly depending on personal expectations, cultural norms, and the mutual satisfaction of the partners involved. The key aspect of a sexless marriage is not just the infrequency of sexual activity but also the impact this lack of intimacy has on the relationship and the well-being of both partners.

It's also important to cover some other definitions:

Alienation of Affection:

  • Involves legal action against a third party accused of interfering in the marital relationship.
  • Leads to the loss of love or affection between spouses.
  • Recognized in a limited number of jurisdictions.

Constructive Abandonment:

  • Occurs when one spouse's behavior (such as withholding sex or emotional neglect) effectively ends the marital relationship.
  • Does not require physical separation from the marital home.
  • Considered a breach of marital duties, including the duty of sexual relations.

Distinction Between Withholding Sex and Alienation of Affection:

  • Withholding sex can be seen as a form of constructive abandonment, not alienation of affection.
  • Alienation of affection requires the involvement of an external party disrupting the marriage, whereas withholding sex is an internal marital issue.

Is Withholding Sex Grounds for Divorce?

Fault-based states

In fault-based divorce states, the spouse seeking divorce must prove that the other party is at fault for the breakdown of the marriage. Lack of intimacy or withholding sex can be considered grounds for divorce under the category of constructive abandonment or non-consummation, depending on the state's laws. Constructive abandonment involves one spouse refusing to engage in sexual relations for an extended period without justification, effectively abandoning their marital duties. This refusal must be continuous and unjustified, leading to the breakdown of the marital relationship. In these states, proving constructive abandonment requires demonstrating a sustained period of refusal, negatively impacting the marriage.

Grounds for Divorce in California

California, however, operates under a no-fault divorce system. This means that a spouse can file for divorce without needing to prove any fault on the part of their partner. The grounds for divorce in California are primarily "irreconcilable differences" or "permanent legal incapacity to make decisions." Since California is a no-fault state, the specific reasons for the divorce, such as lack of intimacy or withholding sex, do not need to be proven or even stated. The law in California allows for divorce based on the assertion that the marriage is irreparably broken, without the necessity to blame the other spouse for the failure of the marriage. Therefore, while lack of intimacy may be a significant issue within the relationship, it does not serve as a legal ground for divorce in the same way it might in a fault-based jurisdiction.

What's the Impact of Lack of Sex on Divorce Proceedings and Orders


The direct impact of a sexless marriage on custody decisions is generally minimal, as custody determinations are based on the best interests of the child. Courts consider factors such as the emotional ties between the child and each parent, the stability of the home environment, and the ability of each parent to meet the child’s needs. However, if the lack of sex is symptomatic of deeper emotional or psychological issues that affect a parent's ability to care for the child, this could indirectly influence custody decisions.

Child Support

Child support is typically not affected by the sexual dynamics of the parents' relationship. Support calculations are based on statutory guidelines that consider the income of both parents, the needs of the child, and the time the child spends with each parent. The reasons behind the dissolution of the marriage, including a lack of sex, are usually irrelevant to the determination of child support obligations.

Spousal Support

While the presence or absence of sexual activity in a marriage does not directly influence spousal support (alimony) decisions, the underlying issues leading to a sexless marriage might. For instance, if one partner withheld sex as a form of economic, emotional, or psychological abuse, or if the lack of sex is related to health issues that impact the spouse's earning capacity, these factors could be considered when determining the necessity, amount, and duration of spousal support. Courts look at the overall marital lifestyle, the needs and earning capacities of both spouses, and the circumstances leading to the end of the marriage when making these decisions.

8 Reasons to Leave a Sexless Marriage

  1. Unmet Emotional and Physical Needs: When a sexless marriage leads to significant unmet emotional and physical needs, divorce may be considered to seek fulfillment and happiness elsewhere.
  2. Irreparable Relationship Damage: If the lack of sex has caused deep emotional wounds or resentment that cannot be healed through communication or therapy, divorce might be the next step.
  3. Lack of Intimacy and Connection: Sexual intimacy is a vital aspect of marital connection for many individuals. Its absence can erode the foundational emotional and physical bond between partners.
  4. Decreased Self-Esteem: A sexless marriage can negatively impact one's self-esteem and sense of desirability, leading to emotional distress and depression.
  5. Incompatibility: Differences in sexual desire or expectations that are irreconcilable can indicate deeper incompatibility issues, making divorce a consideration for both parties’ happiness.
  6. Impact on Mental Health: The stress, frustration, and loneliness stemming from a lack of sexual intimacy can have a detrimental effect on mental health, prompting consideration of divorce as a pathway to well-being.
  7. Openness to New Relationships: The desire to experience sexual intimacy and emotional connection might drive the decision to end the marriage, allowing both individuals to pursue more fulfilling relationships.
  8. Fundamental Disagreement on the Role of Sex in Marriage: If one partner views sex as an essential component of marriage and the other does not, this fundamental disagreement can justify considering divorce as both seek partners with aligned views on marital intimacy.

Reasons to Stay in a Sexless Marriage

Emotional Connection and Companionship: Many couples find that their emotional connection and companionship are sufficient to sustain their relationship, even without sexual intimacy. These elements can be deeply fulfilling, providing a strong foundation for partnership and mutual support.

Family and Children: The desire to maintain a stable home environment for children is a powerful motivator for staying in a marriage. Parents often prioritize the well-being and stability of their children over their personal satisfaction.

Financial Stability and Shared Responsibilities: Financial interdependence and the shared responsibilities of running a household or raising children can make the prospect of separation daunting. The logistical and economic challenges of divorce may lead couples to work on other aspects of their relationship instead.

Personal Beliefs and Social Pressures: Cultural, religious beliefs, and societal expectations can influence the decision to stay in a marriage. Some individuals may view marriage as a lifelong commitment, regardless of the circumstances.

Causes of Being in a Sexless Marriage

  • Physical Health Issues: Medical conditions, disabilities, or the effects of aging can significantly impact one or both partners' libido or physical capacity for sexual activity.
  • Mental Health Concerns: Depression, anxiety, and other mental health issues can decrease sexual desire, leading to a reduction in sexual activity within the marriage.
  • Hormonal Changes: Hormonal fluctuations, such as those related to menopause, pregnancy, or thyroid problems, can affect libido and sexual function.
  • Medications: Some medications, including antidepressants and blood pressure drugs, can have side effects that reduce sexual desire or performance.
  • Stress and Fatigue: High levels of stress, whether from work, parenting, or other sources, as well as chronic fatigue, can diminish interest in sex.
  • Lack of Emotional Intimacy: Emotional disconnect or unresolved conflicts can lead to a decrease in sexual desire, as sexual intimacy is often closely tied to emotional closeness.

Relationship Problems That Could Cause a Sexless Marriage

  • Communication Breakdown: Poor communication can lead to misunderstandings, unmet needs, and resentment, affecting sexual intimacy.
  • Infidelity: The betrayal of infidelity can damage trust and desire, making it difficult to maintain a sexual relationship.
  • Mismatched Sexual Desires: Differences in libido or sexual preferences can lead to frustration and avoidance of sexual encounters.
  • Neglect and Lack of Effort: Failing to prioritize the relationship or neglecting one’s partner can lead to a loss of connection and sexual interest.
  • Unresolved Conflicts: Ongoing arguments and unresolved issues can create a barrier to intimacy, as resentment and anger make sexual closeness challenging.
  • Lifestyle and Routine: Falling into monotonous routines without making time for romance or intimacy can lead to a decrease in sexual activity.

If my state has both fault and no-fault divorce, does it matter if I apply for a divorce on fault-based grounds?

In states where both fault-based and no-fault grounds for divorce are recognized (read more about the pros and cons of each), there are several key differences between the two approaches that can impact the divorce process and its outcomes:

Do you need a divorce lawyer? What are your options?

The decision whether to file on grounds of abandonment is difficult in an already painful time. Consulting a lawyer that can help guide you through this process is often a good idea.

Hiring a lawyer is not your only path to getting legal guidance for your situation. Several lawyers and law firms have worked with Gavel to produce “legal apps” that can help you with this process:

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