Marriage Story – How the Attorney You Choose Can Change Your Divorce
Laura Dern recently won the Academy Award for her portrayal of Nora Fanshaw, a prominent Los Angeles divorce attorney based on real-life attorney Laura Wasser. As I watched the movie recently, it struck me how perfectly the story encapsulates why it is so important to choose the right attorney for your divorce: choose wrong and you could end up in the same sort of epic battle that forms the heart of the movie — Nicole and Charlie watching as their high-powered attorneys duke it out using every fact at his and her disposal to paint the worst possible picture of the other party, all while the parties’ savings are destroyed and their young son Henry is embroiled in the conflict. The movie reflects the conundrum of litigated divorce: it is a process designed to function on conflict, and therefore, it is a process that can destroy people’s ability to co-parent their children together in the future.
Ironically, both parties start the movie saying that there isn’t much property to divide and they are both on board with shared parenting. One would think that would have resulted in a very boring movie where everyone holds hands and settles without going to court. However, through their choice of attorneys, the parties end up on a path that is both far more complicated, and far more expensive, than they want or could have imagined.
Nora, Nicole’s attorney, at first appears reasonable. She creates a homey office environment, serves tea and biscuits, and sounds accommodating when Nicole says she wants to be able to remain friends with Charlie. However, Nora’s real style is to focus on the conflict, exclaiming loudly about what an asshole Charlie is for cheating on Nicole, creating a false storyline about how the parties are really an L.A.-based family when they have lived their entire marriage in New York, and casting Charlie as an absentee father. Laura Dern’s layered approach to Nora deserved the Oscar. She perfectly captured how attorneys can subtly twist the process away from what their client wants to what the attorney wants.
Charlie’s first attorney, Bert, tries to give him practical, child-centered advice, but Charlie feels that he is losing because Bert’s approach requires compromise. As a result, Charlie hires Jay, who doesn’t even bother to pretend approaching the case reasonably. He immediately asks for evidence of Nicole using drugs, suggests that they hire a private investigator, and looks to cast Nicole as an alienating mother.
The parties end up with a court-appointed evaluator looking at their parenting. The evaluation process Charlie goes through in the movie is so close to what we see in Colorado divorces it’s uncanny. The parties spend money to have a woman with no social skills spend a very brief time watching their parenting and then make recommendations to the court about who should have custody. Even Nicole and Charlie recognize that the process is impossibly flawed. Eventually, Charlie capitulates to allow Henry to remain in Los Angeles with his mother, allowing the parties to settle the financial issues as well. However, even at the end, with the case settling, Nora sticks it to Charlie by including a provision in the Settlement Agreement that gives him less parenting time with Henry when he is in L.A., even though that wasn’t what Nicole wanted.
There are many cases where conflict is unavoidable because one party is taking unreasonable positions. In those cases, it is imperative that you choose a seasoned litigator to run your divorce. Similarly, if you are in a case where both parties are interested in settlement, understand the importance of maintaining a good co-parenting relationship, and are focused on the best interests of their children, choosing an attorney who is collaboratively-trained, and who has the temperament to focus on solutions, will give you the best chance of having the divorce you want. If you want a divorce that is focused on conflict, choose an attorney who is focused on conflict. If you want a divorce that is focused on resolution, choose an attorney who is focused on resolution.