In Noah Baumbach’s new Netflix film “Marriage Story,” former couple Nicole and Charlie want to go the consciously uncoupling route with their divorce. They hire a mediator at first, one who asks them to enumerate the things they love about each other, then read their lists aloud.
That doesn’t work out, but they stick to their peace agreement. “We’ll figure this out,” Charlie, portrayed by Adam Driver, naively says early on in the film. “We want the same things.”
At least they seem to, until their divorce attorneys enter the picture. Nicole (played by Scarlett Johansson) hires Nora, a tough-as-nails divorce attorney portrayed by Laura Dern wearing her Renata Klein best. Charlie hires a more mild-mannered lawyer played by Alan Alda at first, but to keep up, he eventually enlists the help of an equally aggressive lawyer portrayed by Ray Liotta.
Things turn ugly, fast. In court, the drama reaches a fever pitch when Dern’s character brings up Charlie’s extramarital affairs (“affair,” singular ― Charlie corrects her). Liotta’s attorney relishes the chance to get dirty and hits back by mentioning Nicole’s marital and parenting sins: snooping through Charlie’s emails, for one, and an overindulgence on mommy juice in the evenings.
The scene ― and the lead-up ― is fascinating in its ugliness. You watch it all unfold through gritted teeth. “Wow,” you inevitably think, “Jennifer Jason Leigh’s divorce attorney must’ve done a hell of a number on Noah Baumbach.”
Given our reaction, we couldn’t help but wonder what divorce attorneys thought. So once they had a chance to watch, we asked four high-profile family law attorneys to weigh in on a few questions: Did those courtroom scenes ring true? What did the movie get wrong about divorce? And Jesus, are you really as terrible as the movie suggests?
Here’s what they had to say.
Charlie and Nicole initially want to split up amicably. But as soon as Nicole brings in Laura Dern’s powerhouse LA attorney ― reportedly inspired by celebrity “disso queen” Laura Wasser ― things turn nasty, fast.
How often does that tonal shift happen?
Lisa Helfend Meyer, a divorce attorney in Los Angeles: Well, the first thing I want to say is, I’m not surprised Nicole’s character opts out of mediation. Women never win in traditional mediation. Most of the time, we can’t compartmentalize our emotions from the business side of divorce. Men eat it up and use it as an opportunity to put their spouse down or verbally attack her. And in Charlie and Nicole’s case, the mediator was way too touchy feely. They both needed a stronger mediator.
As for why things turn nasty, I think it’s often because the man is no longer in control. The dynamic is usually that the husband controlled the wife, especially financially during marriage, and now he feels threatened by the fact that she’s no longer listening. When I come in ― I’m like Laura Dern in the movie ― the husband will say something like, ‘She’s going to take all of our money,’ or, ‘She’s not a good person.’”
Randall Kessler, a divorce attorney in Atlanta and author of “Divorce: Protect Yourself, Your Kids and Your Future”: It does happen and sometimes an aggressive lawyer can cause the friction, but often, it’s the client who wants to be more aggressive (maybe that’s why they chose an aggressive lawyer) but prefers to have the lawyer do so. This helps the client maintain plausible deniability and say, “That’s what the lawyer suggested or wanted.”
James J. Sexton, a divorce attorney in New York City: I’ll say this: Nobody has ever come to my office and said, “I want this to be difficult, painful, expensive and protracted.” They all say the same thing: “I want to be fair.” Their definition of the term “fair,” however, is often very different from their spouse or co-parent. So it’s quite common that people who intend and wish to be “amicable” in a divorce find themselves in a more protracted or “nasty” divorce than they hoped for, as when they get to contested areas where they have differences of perspective.
A lot of the time, it seems like Charlie and Nicole are haplessly going along with what their lawyers want. Does it ever get that ugly at the urging of the respective legal teams? Was that a fair portrayal of divorce attorneys?
Kessler: It does happens and clients should always remember that it’s their case and their life. As for the movie, I’m somewhat offended by how divorce lawyers are portrayed, actually. The two first lawyers, high priced and thus they should be the best, seem to immediately promote their own agenda. The Ray Liotta character doesn’t listen to his client and instead tells him what to do. A good lawyer will listen to and try to find out what the client truly wants. Laura Dern’s character should also not call the other party. Lawyers have an unfair advantage and should do all they can to get the other side to find a lawyer. They shouldn’t talk to the other side one-on-one if at all possible.
Sexton: In general, I think the movie was a somewhat unfair representation of divorce lawyers. Of course there are some “bad apples” that see conflict as an opportunity to generate fees, but most of us (myself included) are too busy working on issues clients genuinely can’t agree upon to create new issues for them to fight about, just to generate fees or feed our egos.
B. Robert Farzad, a divorce attorney in Los Angeles and Orange County: Yes, it happens like it’s portrayed in the movie. Lawyers are supposed to be problem solvers and some are exactly that ― thoughtful, objective and smart. Unfortunately, others are barking dogs in a suit or they fancy themselves motivational speakers regarding the merits of divorce litigation regardless of the facts and law.
Charlie is cash-strapped. There’s one scene where he’s talking with Alan Alda’s character and Alda starts telling a long-winded joke. Charlie indulges him for a bit but then looks at the clock: “Sorry, but am I being charged for this joke?” Are your clients (or you, personally) that cognizant of the clock? Do you try to keep conversation on-topic given your hourly rates?
Kessler: This definitely happens. We’re with people often for long periods of time and we bond with our clients. I think it’s fine for a lawyer to get off subject now and again, especially if it relaxes the client, but they should simultaneously assure the client that they are not being charged for that time. At least Charlie spoke up. I’m sure many clients feel like that but are afraid to say something.
Sexton: I tend to speak very quickly and often tell people in their first meetings with me that I speak quickly because they’re paying for my time. I encourage them to record their conversations with me so they can listen to it again later in more detail.
Farzad: I do not charge for jokes, not even the good ones. Speaking personally, I am probably more cognizant of the clock than most of my clients. Venting to me about the other spouse or lawyer at $450 per hour is not a good use of money. I do have to remind men and women of that from time to time.
How common is switching lawyers midway through, especially when one spouse realizes their lawyer can’t go toe-to-toe with their ex’s lawyer like Charlie did here?
Meyer: Switches happen a lot in high-conflict divorces. Most times, you can predict it will happen.
Kessler: This happens frequently, yes. There are different levels of attorneys, and if a client feels they’re being outmaneuvered by their ex’s team, they may switch. Sometimes clients switch because their own lawyer is being too aggressive. Other times it is because the lawyer is not responsive enough. And yes, sometimes clients return to their original lawyer.
It’s usually better to try another lawyer before the case ends, instead of letting the case end and wishing you had gone somewhere else. At a minimum, why not get a second opinion? Most good lawyers will be honest and give good, helpful feedback about how the first lawyer seems to be doing and may suggest other ideas that are helpful.
Farzad: Somewhere between “very common” and “far too common.” Spouses who hire their first lawyer for emotional reasons and without conducting their due diligence often switch lawyers.
Alda’s character suggests that Charlie, a New Yorker, get an apartment in LA to establish his commitment to his son Henry, while also maintaining his residency in New York, since that’s where he wants to live with Henry. Is that common advice?
Meyer: I actually think the whole LA/New York conflict was the most unrealistic part of the case. The case would have been in New York. Period, end of story.
That said, move-away cases ― when a parent that has joint or sole custody of the child decides to move to a location that’s far enough away to disrupt the custodial arrangement ― are common.
Kessler: That is a little unique. Sometimes there is a question of which state is better for issues like child support, alimony or property division, and a good lawyer’s role is to highlight the differences so the party can decide to possibly move. But then a consultation should be had with a lawyer in each state, or one who is licensed in both.
Sexton: It’s a tactic that I’ve seen used from time to time. We use the weapons at our disposal. I’m not anyone’s moral compass. I’m here to do a job. I’m not here to protect your children. You are here to protect your children. I’m here to obtain an outcome that you define for me.
Was there anything in the movie that seemed very true to life? Or something so unrealistic, you thought, “That would never happen.”
Kessler: The line when Charlie says something like, “But I want him to know I fought for him,” is very real. Mothers and fathers often feel like that, even when they know it’s better for the child to be primarily with the other side.
Sexton: Much of the courtroom scene was totally preposterous. The characters were clearly archetypes and had exaggerated characteristics for dramatic impact.
Farzad: The palpable, overriding affection Nicole’s mother and sister had for Charlie was, at times, silly. Usually, divorce causes extended family to draw the battle lines. Those lines do not always result in vitriol ― think more along the lines of annoyance sprinkled with hearsay-fueled distrust.
“I have been told Laura Dern is me! And I know lots of bumbling Ray Liottas.”- Lisa Helfend Meyer, a divorce attorney in Los Angeles
At the end of the film, Laura Dern’s character gets Nicole 55/45 custody because she didn’t want “Charlie bragging to his friends that he got 50/50.”
Nicole clearly wasn’t interested in the deal so it seemed almost personally motivated. Is that kind of lawyer-driven vindictiveness common when drawing up the terms of the divorce?
Meyer: Not for me. More often than not, you just want to try to empower the client.
Kessler: That was petty and juvenile but yes, there are lawyers that can be like that. But the best aren’t and that’s why they have their good reputations. A good divorce lawyer will never talk about having “won” a case. No one wins, but hopefully we contribute to the resolution and try our best to reduce the antagonism and frustration, not increase it.
Sexton: Clients are way more concerned with percentages of parenting time than lawyers. We frequently joke about how often people say they want “50/50” as if an intact family would ever monitor the percentages of their time with the children. It’s not like, “Billy, let’s go play catch outside for 23 minutes so I know I’ve spent 50% of your time with you!”
Farzad: Some lawyers (and their clients) are willing to die on the hill for that extra 5%. Nora’s angle is she was being “aggressive” in her representation of her client and Nora wanted Nicole to know it. Lawyers think that perspective will cause the client to come back to them if the client needs representation in the future. Sometimes, that’s exactly right, especially for a client who craves that overaggressive style. Sometimes, it reminds the client why it is better to be amicable.
Do you know lawyers like Ray Liotta and Laura Dern’s characters?
Meyer: I have been told Laura Dern is me! And I know lots of bumbling Ray Liottas.
Kessler: I know lawyers with similar characteristics, and many with more bizarre personalities, but judges and other lawyers all get to know what a lawyer is really like. Maintaining a good reputation with judges and our colleagues is crucial. It is our most important asset.
Sexton: They were a bit exaggerated for dramatic flair but they represent personality characteristics that many divorce lawyers have ― and an approach to the practice that many clients are seeking. Mine is the only profession where people come to my office for a consultation and say, as an opening sentence to me: “I heard you’re an aggressive ruthless pit bull and a son of a bitch” and they mean it as a compliment. One client described me as “the sociopath you want on your side.” I used it in my marketing.
Farzad: Are there lawyers like that? Do you want the whole list or just the top 20?
Quotes have been lightly edited for clarity.