I Made (or Lost) Money on GameStop Stock ($GME): What Happens in a Virginia Divorce?

By Steven Goldman, Esq.

 

Over the past week, GameStop (NYSE: GME) and other “meme stocks” (e.g., AMC and Nokia) have dominated headlines as hordes of retail traders attempted to squeeze hedge funds and other high profile short sellers, creating a highly volatile market. Within a matter of weeks, shares of $GME rose from approximately $20 to nearly $500 per share before almost immediately crashing back down to less than $100 per share. Fueled by easier and cheaper methods of investing with apps like Robinhood and TD Ameritrade, along with free trades becoming ubiquitous, nearly everyone has a friend or family member that got in on the action. Naturally, some people earned a lot of money in a short period of time while others lost just as much.

As a family law attorney, I expect to receive a lot of questions from clients as to who gets the “winnings” or, unfortunately, what to do about the losses in asset division and other matters of divorce. The following is a primer as to how investment gains and losses are generally treated under Virginia law:

Overview

In a Virginia divorce, investment accounts (including all stocks and other forms of investments held within the account) are assets subject to division if they are deemed to be marital property under Virginia Code §20-107.3. Irrespective of which spouse is the account holder, an account is considered marital property if it was acquired or contributed to during the marriage (with limited exceptions). As with all other marital assets, they are subject to “equitable distribution,” which is to say that they will be divided “fairly and equitably” after considering the factors listed in Virginia Code §20-107.3(E). Booth v. Booth, 7 Va. App. 22, 27-28 (1988).

If an investment account is held in the name of only one of the parties, the statute provides for a “monetary award” that may be payable to the other party in lieu of dividing the account.

How Should the Investments Be Divided?

Generally, passive appreciation from investments is divided in the same percentages as the rest of the account. For example, if an investment account is to be divided equally, then any investment gains would be divided equally as well. This is true even if those investment gains occurred after the parties’ separation because passive appreciation did not necessarily require any additional contributions by either party to earn that additional money.

However, Virginia Code §20-107.3(E)(2) demands consideration of, “the contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties.” Although every situation is unique, the amount of money earned through active investing post-separation should be considered.

For example, let us imagine that Spouse A had $1 Million in an investment account as of the date of the parties’ last separation and the entire account was marital at that point in time. In January 2021, Spouse A actively traded on the account and earned another $1M from the purchase and sale of $GME. Although Spouse A utilized marital funds to invest in the market, it is at least worth considering the “contributions…in the acquisition and care and maintenance” of such marital property in awarding a greater percentage of the gains to Spouse A. This could potentially result in Spouse A receiving more than 50 percent of the assets from the account.

What About Investment Losses?

Once again, generally, passive losses from investments will not affect the division of an asset. However, let us now imagine that Spouse A had the same $1M in an investment account as of the date of the parties’ last separation, but that Spouse A then loses $500K from the purchase and sale of $GME.

Under the same statute, it could be argued that Spouse A made a “negative” monetary contribution to the acquisition and care and maintenance of marital assets. Spouse A was in control of the assets and took tremendous risk with Spouse B’s share of the funds. As a result, an equitable division of assets may result in Spouse B receiving a greater percentage of the remaining assets.

Further, it could be argued that marital assets were “wasted” or “dissipated” as a result of the risky investments. In considering such an argument, “once the aggrieved spouse shows that marital funds were either withdrawn or used after the breakdown, the burden rests with the party charged with dissipation to prove that the money was spent for a proper purpose.” Clements v. Clements, 10 Va. App. 580 (1990). Gambling and speculative stock trades, in anticipation of divorce or after the date of the parties’ separation, are oft-cited examples of marital waste.

Who Pays the Taxes?

At the end of each year, financial institutions issue a Form 1099, which states the gains or losses incurred throughout the course of a year. All investment income is then claimed on the individual’s tax return for that year. The financial institution will not know whether the account holder is married or getting divorced and so if the parties are to file taxes separately, then only the account holder will be liable for any taxes owed.

“Meme stock” activity saw a lot of people buying and selling their investments in the same month. Any stocks held for less than one year result in “short-term” capital gains and losses, which are taxed at the same rate as ordinary income. For high-earners, the tax consequences for short-term capital gains will be substantial.

Once again, Virginia Code §20-107.3(E) provides that “tax consequences to each party” is a factor to be considered in the division of marital assets. This is to say that if Spouse A is required to pay a monetary award for Spouse B’s share of the investments, capital gains taxes should be calculated into the award because Spouse A will be left with the entire tax liability.

Conversely, capital losses will have been accrued in the scenario where Spouse A lost $500K from the purchase and sale of stock. Capital losses may be quite valuable because they are used to offset gains from the sale of other assets or, if there is a net loss that year, deductible against ordinary income up to $3,000 per year. See I.R.C. §1211

For example, let’s consider that Spouse A lost $500K from the purchase and sale of $GME but the parties also have $100K in capital gains from the sale of investments in a joint brokerage account. During that year, the capital losses can be used to offset the $100K in capital gains so that no taxes are paid on the investment income from the joint account. Spouse A will also have $400K in “capital loss carryover,” which can be used to offset gains in future tax years.

Capital loss carryover, especially in a situation described above, is a significant asset that must be considered when dividing assets in a divorce. See Attiliis v. Attiliis, 2009 Va. App. LEXIS 261 (2009). If the capital loss carryover is not considered, Spouse A will have $400K in losses to offset future gains, which has the potential to be worth well over $100K in future tax savings if Spouse A is a high-income earner.

Conclusion

If you or a spouse have engaged in volatile stock trades, it is important to consider the consequences this may have in the division of the assets used for trading – whether that be tax implications for capital gains or how to consider the value of capital losses.

If you have questions pertaining to your Virginia family law issues, it is recommended that you obtain legal and financial advice from professionals prior to and throughout the divorce process. Curran Moher Weis has experienced family law attorneys who are skilled in financial matters and can work with your financial advisors to plan for your best course of action.

You can request a consultation here on our website or by calling us at (571) 328-5020.

 

All investments involve risk of loss. Nothing contained in this website should be construed as investment advice. Any reference to an investment’s past or potential performance is not, and should not be construed as, a recommendation or as a guarantee of any specific outcome or profit.

 

The information contained within this article is provided for informational purposes only and should not be used as a substitute for obtaining accounting, tax, or other guidance from a licensed tax professional.

 


Curran Moher Weis Promotes Nicole Grejda, Esq., to Partner

We are pleased to announce that Nicole Grejda, Esq., has been promoted to partner at Curran Moher Weis. Ms. Grejda has been with us since 2017 and has since successfully represented our clients in multiple complex, high net-worth divorce cases, earned a certification in collaborative law, and, as of this past summer, is a trained professional mediator.

Our Managing Partner Grant Moher, Esq. said it best, “Ms. Grejda is a highly effective attorney. She is sharp and focused, both in court and at the negotiating table. She also cares deeply for her clients, and it shows in her work. We are proud to add her as a partner to our firm.”

Read the official press release here, and learn more about Ms. Grejda’s background and how to book a consultation with her here.


Child Support in the Time of COVID-19

By Grant Moher, Esq.

As we continue to navigate the ongoing public health crisis of COVID-19, parents are facing limited options for summer child care, as well as the potential that their children’s schools may be entirely or partially online in the upcoming 2020-2021 school year.  This presents a particularly difficult situation for divorced couples who share custody.  Every situation is different, but the following are some things to bear in mind for those navigating this issue:

  1. Child support is always modifiable. Child support can always be modified if there is a change in circumstances that warrants modification.  This could be a change in the income of either or both parties, a change in health insurance, or a change in the cost of work-related child care, to name a few.
  2. Work-related child care is typically included in child support. The cost of work-related child care – that is to say the cost of summer camps, day care, before and after school care, and other similar programs is typically included in child support.  That means the custodial parent who has work-related child care typically determines the type of care, and the cost of the care on a monthly basis, then that monthly amount is factored into the child support amount that the non-custodial parent pays.
  3. Older children. There is no set age cutoff after which work-related child care is no longer applicable.  Courts will look at the individual circumstances of each case; however in my experience, courts will typically start to view the necessity of child care for children over the age of about 12 or 13 with skepticism.  However, this may change as parents who have to work away from home grapple with how to provide their pre-teens and young teens with distance learning.  While children in this age range may be able to care for themselves for long periods of time, they may well need an adult presence to ensure their school work is being completed.
  4. The other parent’s ability to care for the children may be a factor. Under section 20-108.2 of the Virginia Code, when determining whether to include the cost of work-related child care into child support, the Court must consider “the willingness and availability of the noncustodial parent to provide child care personally.”  Thus, if the non-custodial parent is laid off or working in such a way that he or she is able (and willing) to provide care personally for the children, the Court must consider that.
  5. Nannies and Au Pairs. Requests to contribute to the cost of nannies and au pairs can often be a source of controversy, and whether the cost is reasonable will depend greatly on the individual circumstances of the case.  With school-age children, sometimes nannies and au pairs aren’t providing child care for large portions of the day and are instead doing other things for the household like cleaning and running errands.  Should the non-custodial parent have to pay for that?  Like in many situations, it depends on the circumstances.  Would it be possible to get a nanny only for the times of day the children aren’t in school?  Is the custodial parent’s job such that a live-in person is required (e.g. the parent is in a job that requires unpredictable work hours).  The current pandemic may make nannies and au pairs necessary in many households.  If a parent has to work away from the home, and children are not able to be in physical school during those work hours, a nanny or au pair may be the only available option for child care.
  6. Work-related child care must come at a cost to be included. Courts can only factor the cost of work-related child care into the child support guidelines if it comes at a cost.  Often grandparents or other relatives will provide child care, but if this care is given for free, it will not be included in child support.  In my experience, Court will look with some degree of skepticism upon claims that relatives are paid for providing child care.  Claims will depend on the circumstances of the case.  Has this relative always been paid for child care?  Is the relative paid consistently in a form that is easy to verify (e.g. by check), or is he or she paid inconsistently, and in a format that can’t be verified, like cash?

 

The more “legitimate” the arrangement appears, the more likely a Court will view the child care arrangement as valid and include the cost in with the child support.  In light of the global pandemic, more grandparents and relatives may be providing care for school age children during times the children otherwise would have been in school or camps.  Payment to these relatives may have to be considered.

 

As you continue to determine the best path forward through the current COVID-19 pandemic, the attorneys at Curran Moher Weis are here to support you with child support, custody and other family law matters. Follow our blog for additional information and tips or contact us here for a consultation.

 


Child Support and the CARES Act Stimulus Checks

By Daniel Schy, Esq.

As millions of Americans begin receiving stimulus checks from the recently passed Coronavirus Aid, Relief, and Economic Security (CARES) Act, many are wondering what impact these payments might have on child support payments.  Whether you receive or pay child support, we’ve answered some basic questions below:

Who qualifies for a federal stimulus check?

Individuals can qualify for payments of up to $1,200, and couples can qualify for payments of up to $2,400.  Those who qualify and have dependent children under the age of 17 are eligible for up to $500 per child.  Here’s who qualifies for the full credit:

  • Individuals whose Adjusted Gross Income (AGI) is $75,000 or less;
  • Individuals who are the head of household and whose AGI is $112,500 or less; and
  • Couples whose AGI is $150,000 or less

Those whose incomes exceed the thresholds mentioned above will still receive payments, though the payments are reduced $5 for every $100 your income exceeds the threshold.  Individuals with AGIs exceeding $99,000 and couples (without children) whose AGI exceeds $198,000 will not qualify.  The qualification threshold generally increases by $10,000 per child.

Remember: if you’re separated but not yet divorced, then your marital status on December 31st of the a given tax year determines your eligibility to file jointly.  If you’re still married, you can elect to file either jointly or as married, filing separately.

Are these payments considered income?

No.  These payments function as a tax credit rather than a deduction, meaning that it reduces your 2020 tax liability on a dollar-for-dollar basis.  Virginia calculates child support based upon gross income (Code of Virginia §20-108.2(C)), so these payments won’t affect your gross income for purposes of child support.

What impact will the tax credits have on support?

In most circumstances, none.  Virginia utilizes presumptive child support guidelines, meaning that unless the Court determines that “the application of such guidelines would be unjust or inappropriate,” the presumptive amount as set forth in the Code of Virginia §20-108.2(B) will be awarded.  If either party asks the Court to deviate from the guidelines, the Court must consider the tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children,” pursuant to Code of Virginia §20-108.1(B)(13).

What if back child support is owed?

Unpaid child support may be offset against these payments, but typically only if the Division of Child Support Enforcement is involved and has reported the arrearage to the U.S. Department of the Treasury.

If you have questions pertaining to your child support matter or any other Virginia family law issue, we’re still available during the COVID-19 stay-at-home order.  You can request a call or a virtual meeting with a Curran Moher Weis attorney through our online form.

The information contained within this blog is provided for informational purposes only and should not be used as a substitute for obtaining accounting, tax, or other guidance from a licensed tax professional.

 


Divorce Without Court: Options for a Less Cumbersome, Stressful Process

By Grant Moher, Esq.

Current quarantines and mandated closures resulting from the COVID-19 outbreak will impact many people’s lives and businesses in very serious ways. One aspect I want to focus on, as it is currently affecting many of our clients, is the assumption that divorce must happen through court.

With Virginia courts halting all non-emergency hearings, couples pursuing litigation will experience substantial delays. For those couples, and those contemplating divorce, it is more important than ever to know: divorce doesn’t have to mean court.  In fact, the vast majority of our cases  (even those that start with court filings) resolve by other means.

Below is a guide to help you understand the various options for resolving your case without the expense, difficulty, delay, and uncertainty of court.

  1. Kitchen table” negotiation. So-called “kitchen table” negotiation is where you and your spouse discuss the terms of your divorce on your own and come up with a resolution.  One of you then hires an attorney only to draw up the agreement, and you both sign it.

It is crucial that an experienced attorney be the one to prepare the written agreement.  Some of the most difficult and costly situations I have seen in my nearly 20 years of practice were the result of couples signing agreements they drafted and signed on their own that contained conflicting provisions, vague terms, or were entirely unenforceable. Kitchen table negotiation can work well for low-conflict situations where there is a good deal of trust between the parties and everyone has full information about the situation, but you must work with an attorney who is well-versed on this process.

  1. Attorney Negotiation. Attorney negotiation involves both parties hiring an attorney (or one hiring an attorney and the other spouse representing his or herself directly), and those representatives negotiating back and forth to resolve the couple’s situation.  Attorney negotiation can be very effective for situations where a couples’ communication has broken down, or there is a power imbalance between the parties.
  2. Mediation. Mediation usually involves a series of meetings between a divorcing couple and a professional mediator who is trained to help them seek effective solutions to their disagreements.  Mediation is often a good alternative for situations that can’t simply be resolved through a “kitchen table” negotiation.

It is advisable that each spouse have their own attorney to advise them throughout the process, but the attorneys don’t necessarily have to attend the mediations. When I represent a client during mediation, I most often support that person by outlining a strategy in advance of or following a session.

In a situation where several mediation sessions are required, it can be useful for each party’s attorneys to attend and assist the couple in resolving remaining issues. I also typically recommend that one party’s attorney, rather than the mediator, draft the written agreement after the parties reach agreement in principle. It has been my experience that mediators sometimes do not draft agreements as “tightly” as the attorneys representing the   individual parties do.

  1. Collaborative Divorce. Collaborative divorce is a process by which a couple signs an agreement committing not to go to court, and to resolve issues pertaining to their divorce over a series of meetings with attorneys who have received special Collaborative law training. The process may also involve other professionals such as a neutral financial professional to help with the division of assets and support, if appropriate, or a mental health professional to help with emotional aspects of a case and / or issues involving the parties’ children.

The Collaborative process delves into the difficulties between divorcing parties more deeply than mediation or other processes.  As a result, the agreement reached can often be a better foundation for separation and divorce.  This can be very important for parties divorcing with youn children, as they will need to work through issues involving those children for years to come. You can find more information about the collaborative process here.

Of course, it’s not always possible to resolve a case outside of court.  But your attorney should always discuss the various options to resolve your case outside of court – and he or she should do this in the very first meeting you have.

Curran Moher Weis has several experienced family law attorneys who are trained in Collaborative divorce, and all of our attorneys are skilled in resolving cases outside of court. Schedule a consultation with one of our Virginia divorce attorneys through our website here or by calling us at (571) 328-5020.

Check back here at our blog regularly for other news and tips we provide to support you as you navigate separation, divorce or child custody issues.


Accounting for Shared Custody in the 2020 U.S. Census

By Daniel Schy, Esq.

In the midst of the upheaval caused by the COVID-19 pandemic, one of the last things on your mind may be responding to the 2020 U.S. Census.  Nevertheless, the U.S. Constitution mandates this decennial accounting, and your response is required by federal law.

Each person is to be counted at his/her usual place of residence.  For many, their usual place of residence is obvious, but for those parents with shared custodial arrangements, there may be some questions about how their children should be accounted for in their Census response.

Fortunately, there are clear answers: which residence should be considered your child’s usual residence will depend on your specific custodial arrangement.  Generally, though, that is the residence at which your child lives or sleeps most of the time.  If you are the primary caretaker, then your residence should be used.  In the event of a 50/50 custodial arrangement, then the residence at which your child resides on Census Day (April 1, 2020) should be used.

Learn more information about residence criteria for purposes of the 2020 Census here.

If you have questions pertaining to your custody arrangement or other family law matters, particularly during the current COVID-19 stay-at-home mandates in Virginia, Maryland and D.C., request a call or virtual meeting with a Curran Moher Weis attorney through our online form.


Divorce During a Global Health and Financial Crisis: What to Know About Dividing Assets

By Grant Moher, Esq.

As the world halts in a collective effort to slow a global pandemic, financial markets are in a volatile state. A bull market boosted investment portfolios for the last decade only to turn to a bear market that dropped stocks to historic lows last week, and has since been an erratic roller coaster.

While the market will recover at some point, couples who had been in the midst of, or were considering, a divorce before the crash have reached out for clarity on how to divide assets that have decreased significantly in value – once daily life resumes.

Here are 4 tips to divide and protect shared assets without having to liquidate them:

  1. Retirement Accounts. If you and your spouse are dividing assets in a retirement account, like a 401(k) or 403(b), generally these are divided with court orders called Qualified Domestic Relations Orders, or QDROs for short.

 

QDROs can be usually be drafted to take market fluctuations into account.  For example a QDRO could provide that an account is to be divided as of a certain date, and that any market fluctuations that take place after that date are simply applied to both parties’ shares of the account.  Further, there are no tax implications to the transfer.  The plan simply creates a new account for the spouse getting their share of the plan.  That spouse can either keep their account with the plan, or transfer their share to a 401(k) or IRA in their name.

 

  1. Thrift Savings Plans. If you or your spouse are federal government employees looking to divide a Thrift Savings Plan (TSP), that can be done with a Retirement Benefits Court Order (RBCO). The rules for dividing a TSP are similar to the rules for dividing a private sector retirement plan; however, there are a few nuances.  For example, the Order can provide that market gains and losses will be applied to the TSP balance, but that those gains and losses will only be calculated based on the TSP funds the individual was invested in on the date used to calculate the other spouse’s entitlement.  If the member changed those investments after that date, the calculations of gains and losses would have to be done by hand.

 

For additional information on dividing a TSP, please see the government’s official publication here:  https://www.tsp.gov/PDF/formspubs/tspbk11.pdf.

 

  1. Dividing Brokerage Accounts. Spouses looking to divide non-retirement accounts, like traditional brokerage accounts, should generally divide these accounts by shares to the greatest extent possible. For example, if you have 100 shares of stock in a particular company that are to be divided in half, rather than liquidate that stock you can typically divide so that each spouse gets 50 shares of the stock. In a case where spouses are able to reach an agreement to divide an account by shares, the individual or institution that manages their accounts should should be able to work with them to determine an equitable split.

 

  1. Loss Carryovers. Experienced family law attorneys are able to recognize and address when loss carryovers are an issue.  These sorts of carryovers come in many forms: 1) capital losses; 2) net operating losses; 3) passive activity losses; 4) charitable contributions; and 5) Alternative Minimum Tax credits.A full treatment of these loss carryovers would be too extensive for this post, but suffice it to say that if you have brokerage accounts and you’ve experienced losses, your attorney should be readily equipped with the knowledge and solutions to address these issues with you. A CPA or other financial professional should also be enlisted to help determine your options.

 

There are many intricacies to consider with investment and other asset division in a divorce. While many divorces are currently on hold as citizens take necessary quarantine and shelter-in-place measures, our attorneys at Curran Moher Weis are available to answer your questions through phone and virtual consultations.

 

You can request a consultation here on our website or by calling us at (571) 328-5020.

 


For Second Year, Curran Moher Weis is Primary Sponsor for Annual Fairfax Law Foundation Run for Justice

Author: Curran Moher Weis

Curran Moher Weis has signed on as the primary sponsor of the annual Fairfax Law Foundation Heroes vs. Villains Run for Justice 5K, for the second year in a row. As we enter a new decade, 2020 also marks the 8th consecutive year that the firm has sponsored the race, which raises money to support pro bono legal services and educational programs for Fairfax County residents and students.

“We represent many individuals and families in Northern Virginia, often through some of the most challenging times of their lives,” said Grant Moher, Esq., managing partner of Curran Moher Weis. “It is important to us to give back to this community in ways that support families and children having better access to education and resources to improve their well-being and opportunities.”

The 5K is a family friendly event, where big and little runners (and non-runners) are encouraged to come out, have fun and wear their superhero or villain best. Curran Moher Weis will be announcing the race winners, and will have a booth on-site all day with free items, games and activities.

While the race is typically held in mid-April, given the essential need for individuals and communities to aid in the containment of the novel coronavirus, the 5K will this year, occur in Summer 2020. The exact date will be announced soon as further information is known and decisions are made.

Visit our blog or follow us on Instagram and Twitter for the latest updates and other firm and family law-related news.


Curran Moher Weis to Sponsor Event to Provide Resources for Women and Girls in Shelters

Curran Moher Weis takes an active role in supporting and giving back to the Northern Virginia community, particularly initiatives that protect children and families. This year, the firm will serve as the Champion Sponsor of the signature fundraising event for the organization, Bringing Resources to Aid Women’s Shelters (BRAWS).

 

BRAWS’ mission is to bring dignity and empowerment to women and girls living in shelters by providing new, personally fitted undergarments and menstrual supplies. To put their impact in perspective, in a single year, the organization distributed more than 2 million of those essential supplies to more than 80 shelters and schools that serve some 6,000 women and girls.

 

In addition, BRAWS, in partnership with the Girl Up Club’s menstrual equity program at Justice, is collaborating with Fairfax County Public Schools to pilot a program providing free menstrual products in several of the schools’ girls’ restrooms for the first time.

 

The annual event, called “Mardi Bras,” will be held on February 28 this year, at the Westwood Country Club. Keep up with updates on how Curran Moher Weis supports Fairfax County and Northern Virginia children and families, and other family law news and expert perspectives, at www.curranmoher.com/blog.


Marriage Story on Netflix: A Virginia Family Law Attorney’s Perspective

Marriage Story on Netflix: A Virginia Family Law Attorney’s Perspective

By: Steven Goldman Esq.

This past weekend marked the much-anticipated release of the Netflix film, Marriage Story, which, conversely, tells the story of the end of a marriage. The movie tells a disheartening story that, unfortunately, is all too common to family law practitioners. As I watched, I was easily able to associate each of the attorneys, portrayed incredibly by Laura Dern, Ray Liotta, and Alan Alda, with attorneys I interact with daily. Similarly, the divorcing couple, played by Scarlett Johansson and Adam Driver, expressed emotions that many of my clients have communicated to me over the years. It was an ugly birds-eye view of the emotional struggles and havoc that family law practitioners see in the litigation process. It is also an important and insightful directive for family law attorneys to provide better, more supportive options for their clients.

***Spoiler alerts for the rest of this article, but read on if you want to read my review and comparison of the movie to real-life experiences***

 

In the opening scene of the movie, Nicole (Scarlett Johansson) and Charlie (Adam Driver) are reciting many of the positive traits each saw in the other before and throughout their marriage. When they finish, we learn that the exercise was promoted by a mediator at the beginning of the separation. While it is clear that Nicole is struggling with the emotional impact of the process, the mediator tells them of the importance of remembering the positives of the other person. He tells them, “this is a person you had great feeling for and maybe you still do in many ways.” I find that many clients walk in the door wanting and hoping for an amicable divorce, a positive relationship for the future, and the ability to co-parent with one another. Unfortunately, many attorneys quickly steer clients towards litigation tactics and other strategies that, while sometimes effective in court, immediately widen the wedge between spouses. When facing a spouse in litigation, it becomes easy to forget what each person wanted in the first place.

As a mediator and collaborative practitioner, one of the first tasks I ask the parties to complete is a joint list of “Goals and Interests.” This list often consists of the reasons the couple chose mediation or collaborative law in the first place. The following goals are quite common: to ensure that the divorce process does not negatively impact the child; to have a smooth, efficient, and cost-effective process; for both parties to be financially secure in their new homes; and to achieve a fair result. Those “Goals and Interests” are posted on the wall of every meeting thereafter as a reminder as to why they are there and what they are truly aiming to achieve, regardless of how difficult an issue or future meeting may seem. If I had to guess, even those who litigate are hoping for those same results.

Unfortunately, divorce can be one of the most stressful events in a person’s life. One’s goals can be easily forgotten. As Charlie’s attorney tells him, “You know what they say, criminal attorneys see bad people at their best and divorce lawyers see good people at their worst.” I have often used this quote in my career as it is truly representative of what I see on a daily basis. My client’s spouse is hardly ever a bad person, but whether due to the emotional stress of the situation or as a result of receiving bad advice from a friend, family member, or attorney, that person may take certain actions that make the situation all that much worse. I view it as my duty as a family law attorney and counselor to try and prevent that behavior.

The attorneys in Marriage Story often do the opposite. They are so consumed with the idea of “winning” for their respective clients that they end up pushing the couple into an aggressive divorce that impacts their relationship with each other and their child. Eventually, after finally reaching a settlement (and likely tens, if not hundreds, of thousands of dollars later) Nicole’s attorney tells her, “And whenever Charlie is in L.A., I got the custody breakdown to be 55/45…I tweaked it at the last minute. I just didn’t want him to be able to say he got 50/50, bragging to his friends.” When Nicole says she doesn’t want to do that, after often describing Charlie as a wonderful, devoted father, her attorney tells her, “Take it, you won.” Attorneys, whether it is because they are competitive, trying to pad their own resumes, earn more money, or truly think they are getting the best deal for their clients, can do a lot of damage in a divorce.

I believe Laura Dern played the role of Nicole’s attorney as someone who thought she was doing the best for Nicole. She came off as compassionate, but only to her client. When in Court, she minimized Charlie’s role in the child’s life and argued that Charlie was neglectful in caring for the child. Charlie’s attorney accused Nicole of alcohol abuse and argued that she put the child’s safety at risk. Consequently, Charlie and Nicole appeared embarrassed, sad, and powerless. Nothing being said was necessarily untrue, which is a credit to the powerful lawyering skills displayed by both. However, it took each of those situations completely out of context in order to improve the client’s position in a custody battle. As a result, it made it difficult for the couple to trust one another, which is pertinent to co-parenting. This is one of the greatest failures of the litigation process.

At the end of the movie, as Charlie and Nicole are in the next stage of their lives, they are seen together trick-or-treating on Halloween. When their son slumps over on the sidewalk, exhausted after a long day, Nicole offers for Charlie to have the night even though it is “her” night. Throughout the divorce process, no matter how inconvenient it may have been, each refused to relinquish a minute of parenting time. Now, they were putting the child first. This is the outcome parents strive to reach. It is usually #1 on the list of “Goals and Interests.” It shouldn’t be so hard to get to that point and it should even be possible during the divorce process.

The movie did have some minor flaws and inaccuracies. It was personally frustrating to watch the jurisdictional chess match over custody when, for a short-term move, New York would have had a superior claim to the case under the Uniform Child Custody Jurisdiction Enforcement Act because the child had not yet resided in California for a period of 6 months.

There were other moments that I thought were overly dramatic and the attorneys, at times, a little over-the-top with their strategy recommendations. Overall, however, I believe Marriage Story accurately depicted the ugly nature of divorce litigation. I also see the silver-lining in portraying divorce in this way. Parents do usually start off wanting what is best for everyone involved, especially their children. They eventually get to a place where they want that again. It is incredibly important to maintain that perspective throughout the process as well, regardless of the reasons that led to the divorce. In other words, I saw Marriage Story as a ringing endorsement for collaborative law and mediation, which is what I believe any person going through a divorce needs to hear and needs to consider.

 

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