“Marriage Story” – Fact or Fiction?

by | Jan 13, 2020

(Or, finding the better path – a divorce lawyer’s perspective.)

“Marriage Story” might more accurately (though less invitingly) be titled “Divorce Story”. It’s a tale about the divorce experience. While that experience is unique for each couple, the film touches on many common (and not so common) themes.

So, how does “Marriage Story” get it right and wrong? More importantly, how can divorce be better?

Divorce is a process. With multiple process options. We see examples of mediation, attorney-to-attorney negotiations, contested litigation, as well as spouse-to-spouse or “kitchen table” negotiations. And within those processes, interviewing and hiring attorneys, service of court papers, settlement meetings, court appearances, custody evaluations, and signing final divorce settlements or documents. So far, the film gets the high level process pieces mostly right.

I was struck, however, by how both the mediation and wife’s attorney interview scenes blurred attorney-client and mediator-client relationships. Both came off as quasi-therapeutic and, certainly in the attorney’s case, overly familiar and lacking in appropriate attorney-client boundaries. If therapy is, in fact, what’s called for, then that’s best provided by a trained mental health professional. And while mediator-client and attorney-client relationships can delve into very personal matters and occur during an emotionally vulnerable time, the most effective mediators and attorneys maintain appropriate professional boundaries and objectivity.

Listening and communication were recurring themes throughout the film. Disappointingly, the depicted attorneys did neither well. With compounding and disastrous consequences for the main characters. Effective communication is critical to productive attorney-client relationships and client-focused representation.

Yet, we see the wife/Nicole express reservations to her attorney/Nora about filing suit instead of working it out, only for attorney Nora to 1) ignore her own client and 2) make the decision to file suit for her client. Communication is the cornerstone of a solid and successful attorney-client relationship. It is the first and best way to assess an attorney in an initial consultation. Has the client felt heard? Actually been heard? Has the attorney answered questions in ways the client understands? And that reflect the client’s goals? If there are any communication red flags in the initial interview, those red flags are only likely to grow as the process unfolds. That is because (contrary to Alan Alda’s/Bert’s comment that things will get better) the divorce process gets harder before it gets easier and better.

Furthermore, self-determination is an important part of the divorce process. This is the client’s life to live after all; not the attorney’s. An attorney’s role is not to decide for the client. Rather, a client-focused attorney should identify options consistent with the client’s goals (within the attorney’s ethical limitations, of course); evaluate and advise the client about each; and, leave the ultimate decision to the client. Yet, Nicole and Charlie experience this “attorney as decider” in each of their initial consultations (filing suit, forensic evaluations, private investigators, etc.) and beyond for Nicole (Nora’s insisting on 45/55% parenting time instead of 50/50 as Nicole had instructed). These dictates lead to unwanted litigation, an unwanted custody evaluation, unreasonable and unnecessary costs, and breakdown of a functional (though not ideal) co-parenting relationship. The film takes this to an avoidable extreme – had Charlie and Nicole stuck to their initial instincts, chosen attorneys more carefully, and not delegated decision-making to ill-suited attorneys.

People aren’t ready until they’re ready. And, the film hits home here. Spouses often begin and participate in each stage of the divorce process with varying degrees of readiness. That readiness sets the pace of the divorce. Nicole’s unwilling to talk or negotiate in mediation; she’s not ready for a face-to-face settlement attempt with Charlie until late in the litigation process, when it’s spun out of control and she finally feels legally at risk. Charlie’s not willing to respond to or engage in litigation; he’s not ready to recognize that Nicole has chosen a different path than discussed and forced him into a process and jurisdiction he doesn’t want until confronted with $25,000+ spent on unproductive settlement and the prospect of losing his son. A settlement isn’t reached until both parties are ready for settlement and the compromises required.

Readiness is something with which a client-focused attorney can help. Not as decider. Or, persuader. But, as educator. To help the client understand and evaluate options, cost/benefit, and likely outcomes. This may help a client become ready to act and, once ready, to act more decisively. Unfortunately the film depicts attorney-client communications either as attorney directives inconsistent with expressed client goals (discussed above) or confusingly circular, overly general, and unproductive (for example, Alan Alda’s/Bert’s advice/non-advice).

Divorce need not be a war. Even in contested litigation. Undoubtedly, divorce is a loss – many losses, in fact. Loss of relationships, family, friends, home, finances – as they were known. And, just as divorce is an end, it is also a beginning. A reinvention of self and family. The film captures all this. When embarking on divorce, it is worth learning about the various process options, their likely costs, and what outcomes one can expect. This education (which was overtly lacking in the film) is how one selects the process option right for one’s self and the family. This is also how you can head off unnecessary costs and delay. It is how you can avoid a war if that’s what’s desired.

Finally, the lack of professional services was surprising. The custody evaluator was unflatteringly portrayed. No doubt, a custody evaluation is intrusive and scary at best. Fortunately, I have not encountered any evaluators quite as offputting. However, I would have expected to see or hear more references to other common services and providers – court-ordered mediation, expert witnesses, psychological evaluations, etc. Likewise, it was disappointing that there was not more reference to therapy, which can be invaluable during the divorce process (and avoid the blurring of roles discussed earlier). On the one hand, had Nicole’s attorney talked more about the cost and scope of contested litigation and non-litigation alternatives (instead of herself) before filing, perhaps Nicole would not have filed suit so quickly. Had the parties sought marriage counseling or individual counseling more seriously, perhaps their relationship would have taken a different path or at least come apart less dramatically and contentiously.

In all, “Marriage Story” is a good starting point if thinking about divorce and, if unavoidable, asking how it could be better. Seeking professional advice – whether from an attorney, therapist, or both – will provide a more realistic view of the divorce process and alternatives for a better divorce.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You can follow her for discussion, news, and developments in Maryland family law on LinkedInFacebookInstagramTwitter, and LindsayParvis.com, as well as subscribe to her Newsletter.