Legally speaking: just how “real” is Marriage Story, anyway?
This week, the Academy of Motion Picture Arts and Sciences named Netflix film Marriage Story Best Picture nominee. But, as you’ll gather from the press, the clips and everything surrounding the movie: Marriage Story is actually not about marriage—unless you think divorce an inevitable part of marriage (ahem…it’s not).
Marriage Story is not just anyone’s story. It’s the story of the film’s director, Noah Baumbach. And it’s not just any divorce story—it’s the story of a divorce driven by a move-away custody request, with one parent seeking to relocate with the children. If there’s one thing to know about move-away cases, it’s that they tend to be bitter, invasive, and typically go to trial: an estimated $50,000 ordeal that is usually hard on everyone involved, from the couple to the kid(s) to those around them.
If you haven’t tuned in yet, and plan to – skip the rest of this blog, because I’m going to give you a recap ripe with spoilers: ScarJo and Adam Driver (who practiced his break-up moves in Girls) decide to end their marriage. They start the process intent on divorcing without lawyers, dividing everything fairly, and doing what is best for their elementary school-aged son. Which is how a lot of divorces begin. Adam Driver remains in New York and ScarJo follows her post-separation earning capacity to Los Angeles, the couple realizes that they do not share the same sense of equal-ness and fair-ness – making their initial divorce goals well-intentioned, but unrealistic. Then, they both lawyer up. And things snowball from there.
Many elements of Marriage Story are true to what would happen in such a divorce case, in real life. The judge in the case – new to his family law rotation – decides to continue the hearing and avoid making a ruling. A custody evaluator visits each home to evaluate the ability of each parent, in order to make a recommendation to the court regarding custody, where the child should live and recommendations for a parenting plan. (Considering her a “custody moderator” in this role might give a more accurate picture.) And finally – here’s the biggest spoiler alert – the mother gets primary custody of their child in California. (Not because she’s the mother and courts tend to be biased toward mothers – but, because Adam Driver’s character nearly bleeds to death in front of the child after a home accident.) ScarJo finds a new partner in California, Adam Driver feels cut out, and the father-child relationship becomes strained.
All things that typically happen in real life. Except maybe the freak accident part.
But, Hollywood being Hollywood, there are some more fantastical elements of Marriage Story that just wouldn’t (and couldn’t) happen in the real world. Legally speaking. (So, if you’re going through a divorce right now and were a little freaked out by this film, pay close attention here. Their story is not your story. No way, no how.)
Their divorce should not have been filed in Calfornia.
First of all, the jurisdiction of this case is all wrong. This is a New York divorce case, so a New York county courthouse would have authority over this issue. ScarJo would not have been able to file for divorce in California until she had lived in the state for six months, spending at least three months in residence in Los Angeles County, where she had relocated. If there were some emergency that warranted California taking immediate jurisdiction of the case – such as one parent being violent to the other, or to the child – she could have fled to California and filed here, and California would have jurisdiction over the case. But that wasn’t the case here. Given the situation in the film, Adam Driver’s character should (legally) have filed in New York and sought the return of their child via temporary orders from the court while the divorce case was ongoing. (Because – barring an emergency situation or an agreement by both parents – children are not typically allowed to be removed from the state where the petition for divorce has been filed, until the case has been decided.)
They likely would not have discussed settlement before the discovery phase was complete.
In a divorce case, “discovery” is the fact-finding process where both parties lay all cards on the table. The fact-finding process covers everything from financials to properties owned, to any special needs or considerations of the children that should be understood and considered by both parties and the court in a final marital settlement agreement.
The case takes place in California in this film. In most California counties, all discovery must be complete before a judge helps parties settle. And, a settlement is an agreement between the divorcing couple that keeps the divorce out of the court system. In reality, move-away divorce cases rarely settle. After all, how do you make a compromise to share custody when one parent lives in California and one is in New York? Tuesdays, Thursdays and every other weekend aren’t exactly practical (or considerate of the child) in this case.
Saying this was just pure drama:
It’s not necessary to say “you’ve been served” when you serve your ex with divorce papers. But it sure comes across dramatically on film!
Spousal support wouldn’t have been a “thing” in this case.
In Marriage Story, both ScarJo and Adam Driver earn similar incomes. Yet, there were threats in the film of pursuing spousal support. That wouldn’t have happened in real life.
Adam Driver’s second attorney was awful. (Just saying.)
Dad switched attorneys during the divorce in Marriage Story, which I think was a huuuuuuuuge mistake. He should have stuck with his first (nice) attorney, because the second (mean) attorney did not get any better results than the first attorney would have been able to get. (And honestly, the second one probably got slightly worse results than the first would have been able to obtain.) But, the second attorney certainly won big for himself: that big $25,000 retainer sure was nice…for the lawyer.
The court part wasn’t realistic, either.
For a highly contested divorce case like the one portrayed in Marriage Story, there would have been many more required court appearances. Many, several, numerous, multiple trips to court and not just the single visit that ScarJo and Adam Driver paid. There are so many sensitivities and such high stakes in a move-away divorce case, it’s not realistic to think a judge could see a couple in court just once and make a (fair) ruling.
And last, a big lesson you should take to heart:
One of the most “real” parts of Marriage Story was when the couple’s respective attorneys hijacked their clients’ case. They took the divorce narrative away from their clients and turned it into counsel v. counsel. It became about the lawyers winning, not about unwinding two lives. The couple and their child were unnecessarily hurt emotionally and financially as they were manipulated by their lawyers. That’s unacceptable.
If you take anything from this film, let it be this: understand your options when it comes to your divorce, consider the consequences of actions you plan to take, proceed with understanding and empathy to help keep a realistic perspective on your case, and do not seek emotional advice from your lawyer. They are there to help you through the divorce process as efficiently as possible. And a good, ethical lawyer can take emotions into account – but definitely shouldn’t play on them.
And if your lawyer isn’t doing their job, find one who will.