“Marriage Story” Review

• March 13th, 2020
• Family Law

As an attorney who practices family law, I would be remiss not to take this opportunity to review Marriage Story, especially in light of all the accolades it is getting and rightfully deserves.  So, without further ado, here are my TOP THREE TAKEAWAYS FROM Marriage Story from a Family Law perspective:

•  Your Mediator is a Mediator, Not a Counselor:

In one of the first scenes, we see Husband and Wife participating in a mediation session with a mediator who tries to get each party to see the best in each other.  Perhaps Wife’s reaction is a little extreme (walking off when she perceives the mediator as taking her Husband’s side), however, I believe her actions here are justified and a good lesson:  Choose your mediator carefully.  The reality is that a good attorney can point you in the direction of a good mediator and the characters herein do not have that assistance in the beginning.  This mediator has clearly been handpicked by the husband, and as the husband in this matter does not want the marriage to end, he has sought a mediator who is trying to put the marriage back together. 

Don’t get me wrong.  The overarching message here is touching and well-intended – and, yes, even in divorce or when beginning the process of divorce, it can be a useful exercise (especially where the children are involved) to try to see the best in your soon-to-be ex-spouse/co-parent, but this scene reminds me of my own advice to potential clients:  It takes two people to make a marriage work and only one person to decide they no longer want to be in it.  Wife clearly no longer wants to be in the marriage, and as a consequence, any mediator who tries to put back the broken pieces where the pieces of the puzzle are already missing will ultimately be met with resistance, and ultimately failure.  This is not to say that you don’t want the process to be amicable, but as you are the client and are paying for the mediator’s time, it is important for your attorney to find the right person for the job. 

• If They Start at Crazy and You Start at Reasonable, Prepare to End Up Half Crazy

One of my favorite scenes in the movie is the scene where Husband goes to see his first lawyer, who rightfully advises him to file in New York.  The reality is if Husband had filed in New York, he would have set up a damn good jurisdictional argument for custody of this child.  As the parties had lived in New York for the majority of the marriage prior to separation, it seems clear New York has jurisdiction if Father remains in New York with the child.  Of course, Husband doesn’t do that because he wants to be amicable.  Instead, he allows Wife to take the minor child to L.A. and to apparently stay there long enough with the child for Mom to make the case that California has jurisdiction.  The lesson for Father in this case is clear:  The time to grow a heart is not when you are entering a divorce.  The process is brutal and you have to be brutally prepared to go forward with the best arguments you have and for you attorney to pursue them voraciously and also to know when it is time to back off.  The reality is that starting from a position of strength (in this case, standing your ground, filing in New York and stating all of your causes of relief in the beginning) can often make it easier – and yes, sometimes more amicable – in the end.  Imagine for a minute if Husband had taken the child back to New York and filed in New York from the beginning.  It appears clear from the timeline of facts that Wife would have not lived the requisite amount of time in Los Angeles with the child at that point to make a valid argument that California had jurisdiction.  This means that the case would likely have stayed in New York and Wife would had had to fight the case in New York.  Without either party having the resources to fight a long-distance battle on two fronts, each may have been more willing to concede some ground and to negotiate a reasonable position.  Husband may have ended up keeping his life and sanity intact, rather than flying back and forth to L.A., buying a house there, spending money that could have gone to the minor child’s college fund and nearly driving himself crazy…

Which is why the advice of Husband’s second attorney (whom he ultimately hires after firing his second attorney, though by then it is too late to assert New York jurisdiction) is sage:  If the other side starts from a position of crazy (i.e. asserting that a state in which he/she has never lived with the minor child has jurisdiction, regardless of the reason), and you start from a position of reasonableness (i.e. letting the other party take the minor child to see family in the middle of a separation), you are asking for trouble and could wind up losing custody, not to mention half crazy.  Husband should have filed in New York to begin with.  Husband doesn’t do that here and it’s a decision Husband deeply regrets.  It is also ultimately why he must concede in the end.  His case was over before it even began because of his decisions early on…

• Keep Your Eye on the “Prize”

Unlike some reviewers of this movie (Grace Randolph come to mind), I am not of the opinion that this couple could ever make it work and I do not see a future for them…even with counseling.  Perhaps I’ve been in this business too long, but I tend to know a failed marriage when I see one and this one was doomed from the beginning (that’s a matter for another article, or private comments, all of which are welcome).  Having said that, where do the parties go from here and what do you do if your marriage falls apart and you have children together? 

First of all, and many clients don’t want to hear this, you must now treat your former spouse as a business partner, as you are now in the business of co-parenting together.  You will not be able to change him/her at this point.  He/she will not magically become the parent you wanted him/her to be in the marriage, and the things that drove you crazy about him/her as a parent during your marriage will likely continue to irk you until the day those children are married and beyond.  From here on out, you would do well to not just say but to live by the following words when it comes to any decision involving the children: “It’s not about me.  It’s not about him/her.  It’s about the kids.”  If you can answer that question honestly with yourself without asserting your own feelings about the other party into the equation, you will have gone a long way toward “adulting” and to potentially saving yourself a lot of money and heartache in the process.

There are many things to admire about Marriage Story’s take on a modern-day divorce, not the least of which is its message that you can love things about your spouse as a parent without still loving him/her as a spouse.  In Marriage Story, even after all of the fighting, all the claims that Husband is a narcissist (which he may well have been), Wife in the end looks at her attorney and questions why Husband doesn’t have the minor child an equal amount of time as she does while he is staying and working in L.A.  Attorneys like Laura Dern’s character often love to gloat and her character wastes no opportunity to gloat in front of her client in this case.  In answer to this question, she explains to Wife, matter-of-factly, that she has been able to secure her client the majority of time with the minor child because she wanted her client to “win.” 

Of course, children are not a “win” to be had.  Their lives – and livelihood – are a prize to be treasured and protected.  In the end, where children are involved and there is marital/custodial litigation, remember:  It won’t be about you.  It won’t be about your ex-spouse.  It will be about your children.  You steer the ship and must be clear in your heart and mind – as well as in your communication with your counsel – about what direction you want to go from the beginning, knowing what is important in the end.