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Marriage Story: salutary viewing for family lawyers and their clients

Posted: 23/12/2019

Every family lawyer and their clients should watch the recent Netflix sensation Marriage Story. It tells the story of an American husband and wife with an eight year old son who are separating and then divorce. The film illustrates, with remarkable emotional power, the devastating impact of relationship breakdown and its legal aftermath.

Scarlett Johansson beautifully plays Nicole, an actress who leaves her native California having achieved early fame and success and moves to New York to marry Adam Driver’s character, Charlie, an edgy theatre director. His theatre company benefits from the sparkle of Nicole’s early glamour and she becomes the lead actress in his increasingly successful business but finds that her own ambitions are put on hold and that Charlie becomes increasingly self-centered and critical. This is often a trigger point in marriages breaking down: one spouse finds that their own needs are subjugated to further the other’s career, and that their contribution is undervalued as a consequence. There are problems in the marriage and Nicole and Charlie don’t have a physical relationship for a year. Charlie then has a one night stand with a stage hand and Nicole finds out about it having hacked into his emails.

She is offered a pilot series back in Los Angeles and Charlie agrees to let her go back for a while with their son, Henry, on the unspoken assumption that they will return after filming has finished. But it does not work out like that. A central difficulty is that New York is three thousand miles from California and close to a five hour flight. It is also in a different jurisdiction and subject to a different family code to New York, which leads to a battle over jurisdiction. These cases can be extremely stressful to litigate for a family lawyer as there is only a binary outcome. In California, unlike England, all family proceedings must be started in the Superior Court and the proceedings held in public. By contrast, only about 10% of cases in England end up being adjudicated by a judge and those cases which do come to court are heard in private.

Marriage Story starts poignantly with Charlie and Nicole each reading out a list of things that they both love and admire about the other. We learn that they have prepared the list to discuss at a session with a mediator/counsellor with a view to reaching an amicable agreement but very quickly the mediation session breaks down and Nicole leaves feeling that the counsellor is biased against her. Both characters have flaws and strengths. What unites them is their devotion to Henry and there is an undercurrent throughout of a residual affection for each other and a sense that had they taken the chance to communicate openly and safely about their hopes and desires on separation, an acrimonious divorce could have been avoided. They had, it seemed, both signed up to separate and deal with the finances and child care amicably without lawyers but that initial hope evaporated once Nicole instructed Nora, played by Laura Dern, a charismatic, ruthless and rapacious divorce lawyer .  

Whilst in the initial throes of a marriage breakdown, hiring a “rottweiler” may appear to be a sensible option. Often, with the benefit of hindsight, many couples wish that matters had not become so contentious and that they had taken a more consensual approach, which can limit the damage and stress to those involved as well as saving significantly on legal costs.

Charlie is informed by Nora after he hasn’t dealt with some initial communication from her that unless he instructs a lawyer the following day, he will lose custody of Henry and Nicole will go for all the finances. He has to find a lawyer in California in a hurry and meets several, only to find that they are conflicted out. At this point, we feel for Charlie who seems very much on the back foot. He eventually finds an affable lawyer, Bert, (Alan Alda) who seems quite sanguine and resigned to the process, having himself married four times and divorced three times and tells long rambling jokes about the car crash that is about to ensue. During a round table meeting between the lawyers and their clients Bert takes Charlie into a side room and advises him to concede everything and accept that Nicole and Henry are now permanently in Los Angeles. Charlie is frustrated and upset with Bert and decides to up the ante. He hires his own ‘bull dog’ and in an unpleasant public court scene both lawyers take pot shots at each other and their clients, trying to dig as much dirt as they can find to put pressure on the other and influence the judge.

Charlie and Nicole look visibly upset during the court scene. Is this what they wanted, to expose publicly each other’s weaknesses and flaws with hired hands?

They discuss openly with each other the huge amount of money they have spent on legal costs which neither could afford and which could have educated Henry, but they seem locked into a process that they cannot now escape from.

Many family law judges have commented with despair at what they see as unnecessary legal costs incurred by some of the more litigious City firms who have a reputation for running up large bills that are disproportionate to the assets involved in the marriage. It was not so long ago that Mr Justice Mostyn, a High Court Judge,  commented: “I must confess to have been almost lost for words when the scale of the madness was revealed to me after a couple squandered a third of their assets – £1 million – in legal costs”. It is for this reason that there is a consultation underway to see if costs orders in financial cases on divorce can be reintroduced which can punish vexatious litigants who do not attempt to settle.

Charlie spends the next few weeks flying from New York to Los Angeles to see his son. There are heart breaking scenes when Henry does not like a Halloween outfit and Nicole refuses to allow them to spend Halloween together. A neutral evaluator (Martha Kelly) is appointed to report on custody matters. Her role involves sitting and watching Henry with both parents and having a meal with them. The session with Charlie seems to be going ok until Henry tells the evaluator that his daddy is brilliant at playing Lego and should also show her his hilarious knife trick. Charlie duly takes out the knife but fails to retract the blade and slices open his arm which bleeds profusely. At that moment, there is an acceptance from Charlie that all is lost.

A deal is done: Nicole and Henry stay in Los Angeles and the mercenary Nora does not even heed Nicole’s instructions as she changes the custody arrangement that had been agreed (50/50) to 55/45, just because she can. When Nicole and Charlie sign the agreement there seems to be a hesitation from Nicole. Is this what she wanted?

Marriage Story does not come up with any answers on divorce or separation but shows the horrible effects of a disintegrating relationship and the impact that this has not only on children but on the wider family. One of the affecting aspects is the close bond between Charlie and his mother-in-law, which endures despite the escalating hostility between him and Nicole. The film clearly highlights the consequences of hiring a lawyer whose approach is brash, litigious and consequently expensive. It suggests early open communication between Nicole and Charlie in the process of separation may have saved them a huge amount of stress, anxiety and legal costs. It shows that a move to court too early can entrench positions from which it is hard to resile. Fortunately, Nicole and Charlie appear to end with a relationship of friendship and acceptance as Charlie takes the decision to relocate to California to be closer to Henry.

What seems very important at the outset of the separation becomes less so with time to reflect. It is a salutary watch for those involved advising clients in the divorce process, and a must-see for all those going through or perhaps contemplating separating.

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