What If The Couple in “Marriage Story” Had Mediated Their Divorce?

How does a divorce that starts out amicably with a couple who doesn’t even want to use lawyers end up as a court battle with two of the highest priced lawyers in LA? That’s what the Academy Award nominated movie, Marriage Story is about.

Unfortunately, Marriage Story is painfully real, and all too common.

Marriage Story

Charlie (Adam Driver) and Nicole (Scarlett Johansson) are an artistic couple living in New York with their 8 year-old son, Henry. Charlie is an up-and-coming New York director and Nicole is the leading actor in their theatre company.

As their marriage is starting to unravel, Nicole gets cast to do a pilot in LA, where she’s from. Once she’s in LA, a new friend talks Nicole into hiring celebrity divorce lawyer Nora Fanshaw (Laura Dern) and files for divorce in LA. She has Charlie served with papers and fights to establish LA as Henry’s home.

Meanwhile, Charlie interviews Jay Moratta (Ray Liotta), a high-priced shark who encourages Charlie to immediately take Henry back to New York and file for divorce there. He also suggests that Charlie ask for alimony from Nicole and make inflated settlement demands.

Jay explains to Charlie that: “If we start from a place of reasonable, and they start from a place of crazy we’ll end up somewhere between reasonable and crazy.”

To his credit, Charlie walks out of Jay’s office. He eventually hires Bert Spitz (Alan Alda), a well-meaning but less aggressive lawyer. But after a settlement conference when Bert encourages Charlie to give in and allow Henry to live with Nicole in LA, Charlie fires Bert and goes back to Jay.

The rest, as they say is history.

The two lawyers fight. Charlie and Nicole pay them buckets of money. They go all the way through a custody evaluation. Charlie gets an apartment in LA just to strengthen his case.

Eventually, Charlie gives in. He takes a job in LA and stops fighting to move Henry back to New York. With that, Charlie and Nicole settle their divorce and finally move on with their lives.

I was thinking, what if Charlie and Nicole mediated Their Divorce?

Nicole and Charlie faced one of the most difficult and heart-wrenching issues in family law: how to decide where a child lives when his parents live in two different states.

That was the heart of Charlie and Nicole’s fight. It’s a fight that only one parent can “win.”

But if Charlie and Nicole had mediated their divorce, “winning” could have been defined very differently.

Charlie may not have had to give up his theatre company and move to LA just to see his son. He and Nicole may have been able to come up with creative solutions that would have given both of them a substantial amount of time with Henry even though they lived in different places.

For example, Henry could have lived with Nicole during the school year, but spent his whole summer, as well as spring break and part of winter break, with Charlie in New York. Charlie could have also arranged to spend every long weekend and some school holidays with Henry in LA.

Nicole and Charlie may have been able to brainstorm other parenting options for Henry as well. While none of those options would have been perfect (nothing ever is) they would at least have been options. And, they would have spent a fraction of the money on mediation versus what they gave to their high-priced shark attorneys.

Unfortunately, because Charlie and Nicole were fighting in court, none of those options got considered. Henry couldn’t live in New York and L.A. at the same time. So, as long as Nicole and Charlie chose to litigate their divorce, one of them was going to have to lose custody.

Other Ways Mediation Would Have Changed Marriage Story

The most important way that mediation could have changed Charlie and Nicole’s divorce, however, is not just by possibly changing the ending. It could also have dramatically changed the whole story.

How?

First of all, if Nicole and Charlie had mediated their divorce they probably would never have had to go all the way through a custody evaluation. While the movie touched on how awkward and painful a custody evaluation can be, real-life custody evaluations involve way more than just the single home visit that was shown in the movie.

Custody evaluations are complex, time-consuming, and expensive. They’re also hard on kids (which the movie did NOT show).

Charlie and Nicole could have saved a lot of time, money, and heartache by going to mediation and avoiding a custody evaluation.

And, as I stated above, they could also saved a lot of money in attorney’s fees if they mediated their divorce.

While we never know in the movie exactly how much Nicole and Charlie paid for their divorce, we do know it was a lot. At one point Charlie mentions something about having to spend the first installment of the grant money he got for his theater ($125,000) for divorce lawyers. Given the court battle, custody evaluation, and the high price of the lawyers, that’s probably not too far off base.

The Most Important Way Mediation Affects Divorcing Couples

While Marriage Story was a great depiction of what can happen in divorce, it veered from reality in one important way.

In the movie, Nicole and Charlie stay friendly in spite of their contentious litigation.

In real life, that rarely happens.

It’s hard to fight someone tooth and nail in court, and still be friendly with them outside of the courtroom. Yes, every divorcing parent knows that they’re supposed to put their kids first.

But it’s hard – way harder than what the movie showed.

Fighting your spouse in court does not create a peaceful, workable, co-parenting relationship after divorce. Going for “the win” as Nicole did with Charlie, only promotes anger and bitterness.

So, while the movie ended with Charlie and Nicole being great, accommodating co-parents, that probably wouldn’t happen if they had really been tearing each other apart in court.

The Bottom Line

The story of Nicole and Charlie demonstrates what can happen in divorce even when a couple has the best of intentions.

Lawyers who focus only on “winning” can create a lifetime of hurt and hard feelings for their clients and cost them tens or even hundreds of thousands of dollars.

Would Charlie and Nicole have done better in mediation?

I’d like to think so. But, realistically, we’ll never know.  The movie was what it was.

But, if it’s your life that’s involved, the best you can do is to learn from Nicole and Charlie’s mistakes. Do your best to stay out of court. Mediate your divorce instead of immediately “lawyering up.” Do your homework BEFORE you walk into a lawyer’s office, so you’re less likely to be swayed into doing things that you really don’t want to do.

Finally, focus on who you are and on what matters most to you.

Divorce is hard no matter how you do it. But if you consciously try to keep things amicable, you’ll have a way better chance of actually getting through your divorce without creating the kind of mess that so many divorcing couples end up with and without spending thousands of dollars.

Karen Covy is a divorce attorney, advisor, mediator and coach who is committed to helping couples resolve their disputes as amicably as possible. She is also the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. Karen has been featured on the Channel 7 News, WCIU You and Me This Morning, WGN Radio, MarketWatch, The Goodmen Project, and numerous other radio shows, publications, and podcasts. You can find her articles on The Huffington Post, Divorced Moms, Divorce Force, GUYVORCE, and Your Tango, as well as on her own website at karencovy.com.

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