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.

 

Follow the Curran Moher Weis blog for additional insights on divorce and family law matters. Contact us here to request a consultation on collaboration, meditation and other divorce processes we can support you in here.


The Hague Convention: International Custody Disputes and Steps to Keep Your Children Safe

By: Steven Goldman, Esq.

Custody disputes, when not handled effectively, are some of the most difficult, heart-wrenching and financially draining situations a parent can encounter in a domestic relations case. Litigation is expensive, emotionally taxing, and often results in at least one parent believing that his or her role in the child’s life has been marginalized.

International custody disputes raise the stakes even higher because court orders from the United States may not even be recognized in other countries. If your child is traveling or residing within a country, with the other parent, and that country does not recognize your court order, that country’s judiciary system will do nothing to return your child to you in the United States.

How can that be? In which countries could this occur? What steps can be taken to prevent this from happening?

First, a framework to understand the rules that are currently in place:

1980 Hague Convention on the Civil Aspects of International Child Abduction

More commonly referred to as the “Hague Convention,” this treaty was signed by a number of countries to assist one another in cases involving child abductions. Without the treaty, sovereign nations cannot interfere with another’s legal systems, judiciaries, or law enforcement, and so child custody orders are unenforceable. However, the Hague Convention sets forth the following rules for all signatories:

  • Each country must have a Central Authority, which is a main point of contact for parents and other local governments involved in abduction cases. Central Authority is responsible for helping locate abducted children, encouraging amicable solutions to parental abduction cases, and facilitating the safe return of children as appropriate.
  • Countries are expected to conduct expedited proceedings of Hague Convention applications. Courts must explain delays if it takes more than 6 weeks.
  • If custodial rights were violated when the child was taken from the child’s home country, a custody order is not necessary to begin Hague Convention proceedings.

In order to commence Hague Convention proceedings, a parent must show the following:

  • The child is under the age of 16
  • The child was “habitually resident” in one convention country and wrongfully removed to another convention country
  • A person can only have one “habitual residence,” which pertains to the customary residence of the child prior to the removal. Habitual residence can be altered only by a change in geography and the passage of time, not by changes in parental affection and responsibility, nor the child’s citizenship. See Friedrich v. Friedrich, 983 F.2d 1396 (1993)
  • The place where a person had been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from a child’s perspective. See Feder v. Evans-Feder, 63 F.3d 217 (1995)
  • Removal or retention of the child is wrongful (i.e., a violation of custodial rights)
  • A “violation of custodial rights” is a breach of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention
  • At the time of removal or retention, those custodial rights must have been actually exercised, or would have been exercised but for the removal or retention
  • The Hague Convention was in force between the two countries when the removal or retention incurred (a list of all countries that are partners to the Hague Convention can be found on the websites of the Hague Conference and the U.S. Department of State).

Compliance with the Hague Convention

One must not assume that a partner to the Hague Convention will immediately comply with its responsibilities. For example, in May 2018, the U.S. Department of State cited Japan as one of the countries showing a pattern of noncompliance with the Hague Convention. It found that “22 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months.”

Further, it found that the enforcement process is “excessively long” and it is “very difficult to achieve enforcement of Hauge return orders.” The U.S. Department of State issues an Annual Report on International Child Abduction in which it summarizes the status of all signatories to the Hague Convention.

Notwithstanding the issues surrounding noncompliance with the Hague Convention, there are legitimate reasons for denying the return of a child to his or her country of habitual residence:

  • If there is a grave risk that the return would expose the child to physical or psychological harm, or otherwise place the child in an “intolerable situation”
  • The child objects to being returned and has attained an age and maturity at which the court can take account of the child’s views
  • More than one year has passed since the wrongful removal and the child has become settled
  • The party seeking return consented to or acquiesced to the removal or retention
  • Return of the child would violate human rights
  • The party seeking return was not exercising rights of custody at the time of the removal

Steps to Prevent Your Child’s Wrongful Removal/Retention

For these reasons, it is prudent practice to be very specific about international travel when drafting a custody agreement. International travel requirements will be extremely helpful in pleading for the return of a child under the Hague Convention as they will help show that a party ignored specific protocols and that, therefore, the removal or retention of the child was “wrongful.”

Here are a few tips to help safeguard your family:

  1. The agreement should require advance notice of travel, a complete itinerary for the travel, including an exact return date, and means to communicate with the other parent and the child during the travel. If a party wishes to differentiate travel to countries that are signatories to the Hague Convention and those that are not, that must be included in the agreement as well;
  2. The agreement should also reference control of a child’s passport during periods of non-travel and a process for transferring the passport prior to travel;
  3. When traveling internationally, always carry a certified copy of your custody order. Bring a digital copy with you as well, for convenience, but do not rely on the digital copy as an official record; and
  4. If your child custody matter is being litigated, those specific terms should be argued, with reasons to support the inclusion of those terms in the final custody order.

If you or your loved one is faced with this frightening experience, please immediately contact your country’s officer, as well as a local domestic relations attorney with experience in international custody disputes, and begin filling out a Hague Application at the U.S. Department of State website.

If you need assistance beginning the process, have further questions about your child’s international travel, or simply wish to draft a comprehensive custody agreement that covers all aspects of international travel, the experienced Virginia divorce and family law attorneys at Curran Moher Weis are here to help you throughout the process.

Contact us to set up a consultation on our website, or by calling us at (571) 328-5020. Consultations are available in Fairfax and Alexandria, Virginia.


How a Collaborative Divorce Can Save You Thousands

Over the past number of years, the family law landscape in Virginia has changed quite a bit. Before the 1990’s, there was only one true option for a couple seeking a divorce – go to court and have a judge decide the outcome. This method has obvious drawbacks: preparing for court and sitting through a trial is incredibly stressful, especially when your children are the subject of the proceedings; the process is long and arduous, often taking about one year from the date someone first files for divorce; the costs can be exorbitant. While to some this may be worthwhile and even necessary, most divorcing couples hope for exactly the opposite.



Effects of the House’s “Tax Cut and Jobs Act” on my Divorce and Divorce Agreement

On November 16, 2017, the House passed its “Tax Cut and Jobs Act,” setting the stage for the biggest tax reform legislation in decades. For more details on the bill, feel free to peruse the analysis performed by your news-provider-of-choice. While passage by the House does not guarantee anything as of yet (the Senate is still working on their own tax reform bill), tax reform certainly appears likely by the end of the year.


FAQ about Prenuptial Agreements in Virginia

virginia prenuptial agreements

As we pass Memorial Day and inch closer to the summer, we all look forward to warm weather, trips to the beach, and hopefully a vacation. This weekend also marks the unofficial beginning of wedding season. A joyous time indeed but, as a family law attorney, this is also when I start receiving many questions about prenuptial agreements.

As ominous as that may sound, I can personally vouch for a 100% success rate in negotiating prenuptial agreements which means that all my clients celebrated a wonderful wedding and rode off into the sunset ready to embark on a much-needed honeymoon. However, that doesn’t mean that there aren’t traps and pitfalls to avoid along the way. The following are some frequently asked questions I have received throughout the years, as well as a few tips towards successfully navigating the negotiation process:


3 Strategies to Keep Your Virginia Divorce Out of Court

Everyone has heard the horror stories of divorce. Perhaps you have a friend who had to liquidate a child’s college fund to pay for his attorney. Another spent the better part of two years battling over custody of a young child. Yet another got an unfair decision from a “bad” judge. The stories are countless. However, most of these stories stem from litigation.

When two parties go to court to resolve a dispute, they guarantee the following outcomes:



Hiding Assets in a Virginia Divorce is a Game No One Wins

hiding assets in virginia divorce

In anticipation of a divorce, most attorneys will advise their clients to gather financial documents and make a detailed list of their assets. Attorneys may even advise a client to secure up to 50% of the couple’s liquid assets (e.g., transferring money from a joint account to an individual one). The rationale behind this aggressive strategy is that the other spouse cannot dispose or hide assets to which he or she does not have any access.

Logically, the other side of the coin seems to be that it would be advantageous for a spouse to hide or squander those very same assets before they are divided. If a spouse does not know a particular asset exists, or it has already been spent, that asset cannot be divided. However, court rules and procedures, as well as improved investigative techniques, have made this a risky endeavor.