Author: Rachel

WARNING-  the following contains spoilers.  Don’t read it if you have not yet seen the film.

The Marriage Story is a great film which movingly portrayed the end of a marriage, and also portrayed the pitfalls of litigation, and how mediation could have helped save money and resolve conflicts. Difficult topics were explored deeply. The failure of communication and misunderstanding which caused the divorce was laid bare for us to see. But I want to start by focusing on the role of the divorce professionals which was horrifying.

First of all, the mediator was so ineffectual, I winced.  I would never start a mediation by saying ‘It’s going to get very dark and difficult and I want you to have a piece of light and happiness to remember during those dark times in this awful and difficult process.’  No wonder the wife, Nicole (Scarlett Johannson) stood up and stormed out!!

People are nervous and sad (among other emotions) when they come to my office.  I want to help them to heal – to take deep breaths – to be reassured that they have come someplace where we have done this before – where they will get guidance and support so that they can move forward; that we will help them to figure out the puzzle of how to restructure their lives in a workable, fair and affordable way, and we will stay with them till they come out the other end. 

I was stunned, also, by how ineffective the divorce attorneys were at communicating with their clients.  In several scenes, the attorneys talked and laughed about events they had both attended – vacations, dinners – oblivious to their clients’ feelings, waiting while their lives and their child’s welfare are up for grabs. 

Charlie (Adam Driver) is an intense and passionate theatre director, and his wife, Nicole, is the star actor in his theatre troupe. 

This marriage ended because Nicole felt like Charlie’s voice was so strong that she couldn’t hear the voice in her own head.  She didn’t know what she wanted when she was around him.

Is that his fault?  Or her fault?  Most likely a combination of both.

Charlie bears some responsibility for failing to notice that Nicole didn’t contribute to their decision-making.  He was getting what he wanted, and he didn’t stop to think about why he always got what he wanted.  In a balanced relationship no one gets 100% of what they want.  (Sorry to disappoint you, kids.)

But Nicole also has some responsibility for not having communicated that she felt she didn’t have a voice in decisions. 

Somehow, the whole case gets whisked away to California and it’s not quite clear how that happened.  It certainly is not clear that it was the intent of Nicole or Charlie to have the case move to California. 

Maybe Nicole did want to move to California.  But it seemed at the beginning of the film that she was going to do one job and planned to come back to New York, where she was a successful, respected actor.   Her attorney (Laura Dern) said, ‘We have to file suit here,’  ‘Let’s set you up, enroll your child in school, and make this a California case.’  Nicole did not say ‘yes, that’s what I want,’ nor did she say, ‘wait, that is not what I want.’  It didn’t seem to be about Nicole – it was what the attorney advised that she do.

At no point did either attorney say:

            “Here is what litigation looks like.” 

            “Here is what it might cost you.” 

            “You have to decide – do you want to move to California, and take Henry away from his father, and live here permanently?  If yes – here is what that would look like.  If we win, Henry will live with you.  He will see his father summers and school breaks – but he won’t really grow up with his dad. 

            “And there’s a good chance you could lose.  Your life is in New York, Henry is in school in New York, he’s lived in New York his whole life.  Your work is in New York, you are a well-known and successful actor in New York.  And Charlie works in NY theatre, and just won a Macarthur grant.  He may well be able to prove more easily to a judge that the locus of your lives is in New York.”

No one said these things to Charlie, either.  None of the California attorneys communicated to him his strong arguments for filing for a divorce in New York and seeking to have Henry back in NYC with him.  Charlie is now relegated to a life where he will spend hours each month on planes – with his work suffering, not to mention the cost – in order to be a part-time father.     

So whose ‘fault’ is it?  Nicole seems to have no more of a voice in her divorce than she had in her marriage.  But neither did Charlie.  And the lawyers probably each earned $100,000 in fees.

Near the end of the film, Nicole and Charlie sit down together, for the first time, to try to discuss and resolve the divorce.  (As a mediator, I was thinking – great!  What took them so long to try this?)

They discuss the costs of litigation.  Nicole’s mother is taking out a home equity loan to pay her lawyer.  Charlie is also broke.  The litigation will hurt their ability to save for Henry’s college.  They discuss the unpleasant invasiveness of the pending child custody evaluation.  Nicole says, “Can we try to discuss this and resolve it ourselves?” 

But they are unable to do so, without a mediator to help them.  They need to figure out where they want to live, long-term, and what are their options?  What is best for Henry, and for their respective careers? 

But they are not able to stick to these important topics.  They can’t resist accusations and blame, each wanting to feel more like a victim than a perpetrator.  The conversation devolves into hitting ‘below the belt’ as one can only do with someone with whom one has been intimately involved:

                        ‘you are just like your father,’

                        ‘you’re just like your mother,’

                        ‘you f—d someone else,’

                        ‘because you stopped having sex with me for the last year’

                        ‘thinking of sleeping with you makes me want to tear off my skin,’

                        ‘I wake up every morning wishing you were dead!’   

Had they tried to have that conversation with an effective mediator, they could have been guided through that conversation, to avoid devolving into such viciousness.  A mediator could have helped them to express their hurt and fears more directly, while focusing on the things that needed to be resolved, in order to settle the case. 

In one of the more painful moments, Charlie said “you’re winning,” and Nicole said “are you kidding me?”  Charlie punches a hole in the wall, and both are sobbing.  There are no winners here. 

A mediator can help heal the pain of divorce by being neutral, and increasing understanding. it is never simple to determine why a marriage ends.  Something was probably lacking for a while, and maybe one spouse was in denial.  The end of the marriage takes two, as doess the beginning .

My challenge as a mediator is how to understand/empathize with both people.  Brad went out to get a newspaper one Sunday morning and did not come back or call for 3 days.  He left Helen with 2 young children, without even a note.  I could imagine her anguish, and the children’s fears.  But during our sessions, Helen never let Brad speak!!  What he did was not right. But something drove him to do this.  He experienced something equally awful or he would not have done this to her. 

That is the crux.  Most of us are trying to make our way through this life doing our best.  We try not to hurt the people we love, or have loved.   But we are imperfect creatures, so we do not always succeed.  We are hurt and we lash out – and the other may not know that he/she has hurt us.  Through my understanding as a mediator, I can often help people to forgive themselves and each other – which will help them to move forward into their new lives post-divorce.

Divorce raises hurdles, as you restructure and begin to figure out your new life – and also raises complex emotions.  Mediation is a good place to explore these things. When you are navigating the maze of these changes, the last thing you want to hear is that your spouse’s position has some validity. 

These feelings are especially intense where the impetus for the break-up of the marriage is a situation with deep emotional effect – for example, where one person has a new lover, or where one person walked out on the other very suddenly and without warning.  The identity as a wronged person becomes compelling and attractive.  In mediation we focus on a broader picture. A neutral mediator can bring you closer to the truth, and the truth will help you to move on with your life.

Sometimes people think they need a prenuptial agreement to keep property they own now, separate, in case of a divorce.  But everything that you own before the marriage will stay separate, as long as you keep it in your separate name.  So you don’t need a prenup, if all you want to do is protect your premarital property.

Still – in a good prenup mediation, we can discuss what you each feel is fair, and you can start your marriage without unexpressed assumptions and expectations.  Also, the prenup will memorialize what you have now – exactly what is your premarital assets and debt, so that there is no confusion, down the road.

Debt that you have now will be your separate debt, even after you marry.  Anything you receive as a gift or inheritance, no matter when received, will be your separate property. 

Where people get in trouble is when they mix up (commingle – is the legal term) separate property and marital property. (If you have good records, you can trace it, and get a separate property credit. So – for example – you inherit $250,000 from Aunt Tilly, and you use that as the downpayment on a home. 5 years later, you sell the home, and net $650,000. $250,000 is your separate property credit, and you split the balance – $400,000 – equally with your spouse. So you have $450,000, and spouse has $200,000.)

If you don’t have a prenup, here are the things that will be considered (by NY State) to be joint property – owned 50/50:

• monies earned during the marriage
• gifts given to both of you (such as wedding gifts)
• retirement assets earned during the marriage
• debts accumulated during the marriage
• a business started during the marriage
• equity accumulated in a home purchased during the marriage

If you want to change any of this, you can come to mediation and I’ll help you to figure out what will work for both of you, for your future.  In a prenuptial agreement, you can tailor your property rights to best meet both your needs.  Shoot me an email – or give me a call.