Marriage of Smoller

First District Appellate Court – (1991) – Held – Irreconcilable Differences Existed Where Testimony Established That The Husband Did Not Desire To Be Married To The Wife And The Parties Lived Separate And Apart For More Than Two Continuous Years

In re Marriage of Smoller 218 Ill.App.3d 340, 578 N.E.2d 256 (1st Dist. 1991)

(Leading Case In Illinois On Proof Of Irreconcilable Differences In A Marriage And A Spouses Entitlement To A Divorce Even When Opposed By The Other Spouse)

In Smoller Attorney Canulli represented Gerald Smoller who sought a divorce from his Wife Olivia. The court conducted a trial wherein Mr. Smoller testified at length to the irreconcilable differences which existed throughout the marriage and offered further testimony that he had lived separate from Olivia for more than two years, held no love or affection for her and had no intention of reconciling his marriage, participating in the marriage nor any intention of ever returning home to resume the marital relationship. The trial court refused to find that irreconcilable differences existed and refused to grant Mr. Smoller a divorce instead choosing to enter a Judgment of Legal Separation. The case was appealed to the 1st District Appellate Court which held that, “…Where evidence shows one spouse clearly desires to no longer continue to be married to the other, an irreconcilable difference necessarily arises between them causing an irretrievable breakdown of the marriage. Indeed, if a greater difference can exist within the context of a marriage relationship than one between spouses where one refuses to continue as the spouse of the other, we are at pains to conceive of it. As observed by Justice Robertson of the Supreme Court of Mississippi:

“That one spouse out of blindness, obstinence or nostalgia refuses to recognize it hardly means that a marriage may not in fact * * * be irretrievably broken. As a matter of common sense, there can be irreconcilable differences within a marriage even when one spouse refuses to accept or recognize that fact.”

Thus, now under Smoller, so long as one spouse has remained separate and apart from the other for the requisite period of time, a spouse is entitled to dissolve their marriage by showing that the marriage is irretrievably broken and that irreconcilable differences exist. The Judgment of the trial court was reversed and Mr. Smoller was granted his divorce.

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