Now streaming on Netflix, one of the Best Picture nominations at this year’s Academy Awards was “A Marriage Story” starring Adam Driver, as the husband and Scarlett Johansson, as the wife. While nominated for awards in six categories, the sole award went to Laura Dern, as best supporting actress for her portrayal as the wife’s aggressive divorce lawyer. The divorce lawyers for the husband are portrayed by Alan Alda and Ray Liotta.

Although the movie has a 95% rating on Rotten Tomatoes, and described as a well-acted “divorce horror story”, it unfortunately contains numerous fallacies about the divorce process that will continue to perpetuate stereotypes about lawyers and divorce that are simply not true. Let’s examine some of the plot lines that are Hollywood fiction, and those that ring true as fact:

Mediation Is Not Always Portrayed Accurately

Fiction: The movie opens with the husband narrating scenes to depict what he loves about his wife, then the scene switches to an office setting where the couple appears to be in the office of a marriage counselor/therapist. When the wife refuses to read her list of reasons she fell in love, they break out into an argument over their promise to listen and resolve their conflict with the use of this mediator (not a counselor or therapist), instead of using lawyers. This is fiction because even if parties are using a mediator and reach agreements during that process, divorce attorneys are usually still involved. Attorneys will give advice to the parties about the legal implications of their agreement (which mediators cannot do) and will draft the legal documents necessary to make the agreements enforceable and finalize the divorce with the court. While all states are different, in Washington, all divorce cases are required to mediate if the parties cannot agree, and attorneys usually set up that process and select the mediator.

The Attorneys Don't Always Act in Their Clients' Best Interests

Fact then Fiction: When the wife goes to a lawyer, she is calmed by the fact that the divorce lawyer has been through the process herself and seems to understand her point of view. The lawyer makes a true factual statement, “what you’re doing is an act of hope, you are saying I want something better for myself.” However, when the wife clearly states that she does not want to be aggressive, she wants to stay friends with her ex, and that she does not want money or anything else from him, the attorney does not listen, and we see the wife’s lawyer throughout the rest of the film as extremely antagonistic, aggressively seeking a “win” instead of a peaceful resolution. Later in the film, when the husband tells his lawyer that he just wants to settle, he is told that a “win” is what’s best for his son. In reality, the best outcome is when attorneys listen to their client’s objectives, explain the pros and cons of all legal options, and let the goals of their client inform their strategy.

The Court Proceedings Received a "Hollywood" Treatment

Fiction: The husband’s lawyer makes a commonly heard sentiment among lawyers and judges in real life: “Criminal lawyers see bad people at their best, while divorce lawyers see good people at their worst.” While it’s true that criminal defendants tend to behave themselves while appearing in court, and that divorce clients have emotional outbursts and display their frustration and pain, experienced divorce lawyers will prepare their clients in advance and pursue paths that minimize the drama. In one scene both lawyers, with both clients present, are taking turns describing the marriage from completely different perspectives, painting the opposing party as a wicked person who must be punished. This was clearly a Hollywood moment, flaming the hostility for drama, with no realistic basis.

Custody Judgments Don't Always Work As Portrayed

Fiction: Both lawyers convince their clients to go to battle, regardless of the extraordinary financial and emotional costs that will result. The husband’s lawyer comments that if they start with a reasonable position and the wife starts from a position of crazy, it will end up somewhere between reasonable and crazy which is “half-crazy”. But the husband’s decision to go to battle is really inspired by a call he gets from the wife’s lawyer telling him that if he doesn’t file an answer by the end of the week, they will seek a default judgment and get an award for sole custody and the highest amount of child support & alimony possible. While getting a default judgment is a possibility, it would likely not occur as portrayed. The court reviews any requests made by a spouse even in defaults and must approve all financial orders such as child support and alimony (also referred to as “spousal maintenance”) as well as custody of a child, referred to as the “Parenting Plan” in Washington.

There ARE Conflicts of Interest that Attorneys Consider

Fact and Fiction: When the husband tries to find a divorce lawyer, he learns that attorneys who had previously met with his wife cannot ethically represent him. His son tells him that they visited at least 11 other attorneys, which leads the viewer to conclude that the wife’s attorney actually encouraged this scheme to make it difficult for him to get an attorney before the default judgment deadline. Many clients wonder why when they call a law office for the first time they are asked for the other party’s name. This is how law firms run a “conflict check.” And while it is true that lawyers have professional standards of conduct which include strict rules on declining representation when a conflict of interest is present, it is not a common strategy for divorce lawyers to deliberately set up such conflicts.

Divorces Are Hard on Children, and Communication is Key

Fact: Once the husband begins to exercise visitation rights, the son is reluctant and does not want to leave his mother, which causes the father to swear at him and they both become upset. Unfortunately, kids do go through an adjustment period, which is best handled by divorcing parents who cooperate with each other. Experienced divorce lawyers know that cooperation is developed through the divorce process that gives both parties equal input on child-raising issues. In a later scene when the husband asks the wife to be flexible with a weekend schedule due to a work conflict, she says no which leads to a huge fight- again overdramatized for Hollywood, but a realistic outcome when the parties are taught to be antagonistic by their legal representation.

Going to Trial Is Always a Possibility to Be Considered

Fact: The husband is very confused by his lawyer continually saying that we don’t want to go to court, but starting every piece of advice with how the court would view the facts, or how the court would rule on the issue. This is factually correct. Attorneys know that many issues are contested in a divorce and can be argued based on a combination of not just the law but on the unique facts of each case. Attorneys must be prepared for going to trial if the case does not settle and experienced attorneys know that previous court rulings are the best source of guidelines to help a client make realistic choices. The confusion that many clients feel can be eliminated when divorce lawyers spend enough time gathering information through “discovery” and then carefully explaining to a client how they think the law will be interpreted based on the facts of their case.

Guardian Ad Litem Cases Move Much More Slowly

Fact and Fiction: One of the most challenging scenes in the movie takes place in the courtroom, when the two attorneys are both arguing that the other party should pay their client basically everything they have. It is not clear why they are appearing before the court and the film makers do not spend time showing whether this is a hearing to get temporary orders or the actual trial. The judge stops them and appoints an expert who is tasked with meeting and observing each separate household which will later allow the court to decide changes to a temporary custody order based on the evaluator’s report. A disastrous yet hilarious scene follows with the evaluator visiting the father and son interacting over homework, play and dinner time. The scene quickly moves to the end of the divorce case, so it’s not revealed what she recommends or how it affects the outcome, nor does it show the evaluator meeting with the mother and the son. In reality, courts can appoint a “guardian ad litem” or Parenting Evaluator who interviews both parents, children, teachers, counselors, medical professionals, and other significant contacts for the family, as well as reviewing records (school, medical, criminal, etc.) before making recommendations to the court. It can be a very thorough and detailed process spanning weeks or even months before a report is issued, after which the attorneys will review it with their client and decide what steps to take such as additional fact gathering, declarations or responses designed to rebut any of the information in the report that the client does not agree with.

Attorneys Can NOT Ignore a Client's Wishes for Final Outcome

Fiction: In the scene immediately preceding the act of signing a final separation agreement, the wife’s attorney boasts that she got them to agree to a 55/45 split of residential time with their son, so that the husband can’t brag that it was an equal outcome. The wife responds that she didn’t want that, she agreed to equal time. But the written agreement is not amended, and the client’s wishes are ignored. In reality, an attorney cannot ignore their client’s wishes, and agreements must be written to reflect the parties true intentions.

To avoid a spoiler alert, the emotional ending won’t be revealed here. But the family law lawyers at Molly B. Kenny, LLC, do want to reveal the reality of divorce proceedings to their clients, and to guide them through a process that focuses on an amicable future in the best interest of their children.

Molly B. Kenny
Connect with me
Divorce and Child Custody Attorney Serving Bellevue and Seattle Washington
Post A Comment