## Facts

- Kathleen Dowd (wife) and Thomas Dowd (husband) married in 1970 and had three children.
- Over many years, the marital relationship deteriorated; the wife slept on a couch while the husband slept in a separate bedroom.
- The wife testified the parties had no sexual relations since about 1981 and had limited communication and independent social lives.
- Although they often remained in the same home, evidence showed they lived separately within the household.
- In 1987, the parties took a trip to Florida and shared a hotel room as a reconciliation attempt; the wife testified it did not restore the marriage and involved no sexual relations.
- The wife filed for dissolution on no-fault grounds under Illinois Marriage and Dissolution of Marriage Act (IMDMA) § 401(a)(2), alleging irreconcilable differences.
- The husband contested dissolution, arguing the parties had not lived “separate and apart” for two continuous years and that the marriage was not irretrievably broken.
- The circuit court found irreconcilable differences causing an irretrievable breakdown and found the parties had lived separate and apart for more than two years; it entered a judgment of dissolution.
- The husband appealed; the wife moved to dismiss the appeal as moot, asserting the husband accepted the judgment by moving in with another woman.

## Issues

1. Whether the appeal was moot under an acceptance-of-benefits theory based on the husband’s post-judgment cohabitation with another woman.
2. Whether “separate and apart” under IMDMA § 401(a)(2) requires spouses to live in different residences, or can be satisfied while co-residing when the marital relationship has ended.
3. Whether the evidence supported findings of irreconcilable differences, an irretrievable breakdown, and no reasonable prospect of reconciliation under IMDMA § 401(a)(2).

## Decision

- The appellate court denied the wife’s motion to dismiss; the husband’s cohabitation did not clearly and unequivocally show acceptance of a legal benefit of the dissolution judgment.
- The court affirmed the judgment of dissolution.
- The court held that “separate and apart” does not require separate residences; spouses may meet the requirement while living under one roof if marital relations and consortium have ceased and they no longer function as a marital unit.
- The evidence supported the trial court’s findings that irreconcilable differences caused an irretrievable breakdown and that reconciliation efforts had failed or future attempts would be impracticable.

## Legal Principles

- An appeal is not barred by acceptance of benefits unless the appellant’s conduct clearly and unequivocally shows acquiescence in the judgment by voluntarily accepting its legal fruits.
- Under IMDMA § 401(a)(2), “separate and apart” is a functional inquiry focused on cessation of marital relations and the end of marital consortium, not solely physical separation into different residences.
- Co-residence for economic or child-related reasons does not preclude a finding that spouses lived separate and apart if the marital relationship had ended in substance.
- A brief reconciliation attempt does not necessarily interrupt a continuous separation period when it does not restore the marital relationship.
- Findings of irreconcilable differences and irretrievable breakdown are fact-dependent and are upheld on appeal unless against the manifest weight of the evidence.

## Conclusion

The appellate court affirmed a no-fault dissolution, holding that the statutory “separate and apart” requirement can be met even when spouses share a residence, so long as the evidence shows the marital relationship and consortium ended for the requisite period and the marriage is irretrievably broken with no reasonable prospect of reconciliation.


In re Marriage of Dowd, 214 Ill. App. 3d 156, 573 N.E.2d 872 (Ill. App. Ct. 2d Dist. 1991)