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CAN WE REALLY RELY ON “PRECEDENT” IN DIVORCE CASES? IS GAMBLING NOW GROUNDS FOR DIVORCE?

Lawyers are taught that they are to rely upon “precedent” in advising their clients and presenting their cases. “Precedent” means that the matter has been decided a certain way before by a court of authority and it should be decided that way again. But the truth of the matter is that precedent seems to do lawyers very little good, particularly in family law, where it is also the law that “each case turns on its own facts.” A good example of this is the recent decision of Smith v. Smith, No. 2009–CA–01661–COA (Decided 11/1/11), wherein the Court affirmed a divorce on the ground of habitual cruelty where the allegations of cruelty seemed to depend entirely on gambling. On the face of it, this decision runs contrary to several decisions explicitly saying that gambling does not constitute cruelty. But the Court navigated around those several precedents by using the “facts of the particular case” doctrine. The Court distinguished the other cases because Billy Smith’s gambling losses were more substantial than other cases and Billy engaged in a pattern of dishonest behavior in incurring the gambling debt. These seem to be specious distinctions, given the fact that gambling is not intentional conduct designed to hurt the other spouse, a traditional view of cruelty. In the end, whether or not lawyers are confused on how to advise clients, the holding in Smith does recognize what we all know, gambling addiction may be the most destructive addiction there is, and it is probably good that Courts are now recognizing it.