“Marriage Story”: A Cautionary Tale?
February 4, 2020
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
Take-away learnings about divorce
If I had a dollar for every time someone asked me about what I thought about “Marriage Story,” the Academy Award-nominated film that was released on Netflix in December 2019, I would have made a lot of money very quickly. I wanted to enjoy this film and not allow myself to immediately associate the on-screen issues of Scarlett Johansson and Adam Driver with the issues of my real-life clients. I wanted to watch to be entertained, and not to judge or critique the actors’ portrayal of myself, my colleagues, and my clients. Needless to say, I was unable to stop myself.
So much of this movie could have easily been a reenactment of a real-life case that I’ve seen in the last ten years. I instantly identified the negotiation and litigation tactics of Laura Dern, Ray Liotta, and Alan Alda with attorneys I have worked with or against, or even to myself. In fact, there were several strategies utilized by all three of the attorney characters that I regularly use in my practice.
As a divorce attorney, what are some things I want clients to take away from this film?
1. Be prepared for the worst.
Charlie was blindsided by Nicole’s decision to relocate permanently to Los Angeles from New York with their son, Henry. Although the legalities of Nicole’s move were not necessarily all there as it was unclear if Nicole and Henry lived in California for six months before she filed for divorce, you should not assume anything when dealing with the terms of separation or divorce. As Nicole and Charlie both repeatedly insisted, they never explicitly agreed to a lot of what they were basing their decisions upon. For example, when Nicole moved to LA with Henry, Charlie assumed that it would be temporary while Nicole began setting down roots for herself and Henry. Even though Nicole and Charlie had not yet filed for divorce, they were certainly, at least, in the process of separating. Something as simple as an agreement as to which state would have jurisdiction over the divorce would have avoided all of this heartache.
2. Contested divorces can get very, very expensive.
Heed the warning of Bert Spitz when he tells Charlie that his fight for custody, although genuine and well-meaning, will ultimately be draining money for Henry’s education. Bert also warns Charlie that it would cost Charlie half of the asset he is trying to protect to fight Nicole’s potential claim to it. After the mediation at Nora’s office, Charlie depletes an entire bank account totaling over $25,000 to pay Bert and then shows up to Court with his new lawyer, Jay Marotta. Then, after both attorneys made their arguments, the Judge in the case appointed an expert evaluator as to custody. Although it was not specifically stated that the parties would have to pay for the said evaluator, it is highly probable that they did. These costs add up and certainly play a role in how quickly a case settles and how eager the parties are to proceed with litigation.
3. You and your attorney are a team.
For the most part, your attorney should not be taking positions that you specifically direct him or her not to take. At the very end of the film, Nicole is shocked to discover that Nora proposed a 55/45 instead of 50/50 split for custody. Nora casually states, “I just didn’t want him to be able to say he got 50/50, bragging to his friends.” When Nicole stated that she did not want that, Nora insisted “Take it. You won!” If Nicole objected and wanted to revert back to a 50/50 schedule, she could have directed Nora to do so, but it does not seem like she did that.
In that same vein, whenever Charlie questioned whether Nora was in agreement with Nicole’s strategy, he should have realized that, at the end of the day, Nicole had the final say in whatever Nora was proposing on her behalf. And, when Charlie switched attorneys, he intentionally did so in order to be represented in a far more aggressive manner. If you do not agree with the tactics that your attorney is taking, speak up and voice your concerns. While some aspects may be limited due to legal and procedural boundaries, there are certain aspects of the strategy that can be modified based upon your comfort level.
At the conclusion of the film, things seem to have gotten better between the exes. Nicole offers to allow Charlie to take Henry home after trick-or-treating even though it is her night (something she certainly wouldn’t have done at the beginning of the film). A gesture that small signifies, to me, that there is light at the end of the tunnel for these two parents, and that Henry will continue to be the center of their worlds. Two thumbs up from this divorce lawyer!
For more information on family law, contact Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC.