If you are a Virginia resident facing a divorce, not everything you see in Marriage Story will apply to your own case. The film gets some details right, but other things that happen in the film are legally questionable, or at least would not apply to a case in Virginia. But, we can identify four lessons from Marriage Story that you can apply to your Virginia divorce.
Interstate Custody Jurisdiction
One legal detail that Marriage Story seems to get wrong relates to interstate custody jurisdiction. The child custody battle in the film takes places in California courts, although New York seemingly should have had jurisdiction over the initial custody determination between the parties. California, like Virginia, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a state may exercise custody jurisdiction if that state: (1) is the child’s “home state,” meaning the child has lived in the state with a parent for at least six consecutive months immediately before the custody case is filed, or (2) was the child’s home state within six months before commencement of the proceeding, and the child is absent from the state but a parent or person acting as a parent continues to reside in said state.
In Marriage Story, the parties’ son had not been living in California for the requisite six months when the custody battle began, and Driver’s character maintained residence in New York state. While the film consistently treats California as the operative jurisdiction, Driver had a strong—and likely winning—argument that New York was in fact the child’s home state, and thus the appropriate jurisdiction to make an initial custody determination. Had Driver’s attorney contested jurisdiction, it is likely California would have ceded its authority to the New York courts, or at the very least, held a judicial conference with a New York state judge to make an appropriate determination.
Lesson #1 for your Virginia divorce: understand the UCCJEA. If your case involves interstate custody issues, it is imperative that you understand the UCCJEA early in the process. Be sure to read up on both Home State Jurisdiction Under the UCCJEA and Exclusive, Continuing Jurisdiction Under the UCCJEA.
In addition to child custody, the parties in Marriage Story battle over the division of property. This includes a dispute over Driver’s MacArthur Grant and Johansson’s earnings from her television show. While those assets may be divisible under California law, under Virginia law they would likely be considered each party’s separate property, not subject to division in a Virginia divorce case.
First, Johansson had her divorce complaint prepared and ready for service the same day that Driver found out he would eventually be receiving the MacArthur Grant. Therefore, it follows that she had already chosen with her attorney a separation date that would have occurred prior to Driver’s receipt of the grant money. Johansson’s attorney argues that, “Charlie’s genius is an intangible asset built during the marriage.” However, given that the grant money was received after the date of separation, said grant would have presumptively been considered separate property in a Virginia divorce. Similarly, while Johansson’s income would be relevant to an award of spousal support, Driver would not be entitled to a share of her post-separation earnings as part of a Virginia equitable distribution award.
Lesson #2 for your Virginia divorce: post-separation assets are separate property. Generally speaking, property acquired post-separation will be classified as separate property in Virginia, which means it’s not divisible in a divorce.
Hiring an Attorney
One thing that Marriage Story illustrates very well is the importance of retaining an attorney in the early stages of a divorce or custody case. Any viewer can find Driver’s character sympathetic as he rushes to hire counsel in order to respond to Johansson’s divorce complaint in a timely fashion. Notably, Driver almost misses the deadline to file responsive pleadings. But for a courtesy call from Johansson’s attorney (played by Laura Dern), Driver may have missed the deadline altogether.
This illustrates the straightforward concept that individuals who are served with legal documents hire counsel without delay. The stress and turmoil felt by Driver could have been largely avoided had he retained an attorney promptly after being served.
However, Driver’s reasons for delay in hiring an attorney are worth a closer examination. One tremendous obstacle he encounters in attempting to retain counsel is that Johansson had already consulted with many of the attorneys Driver might have wanted to retain—essentially blocking him from hiring any of them. As depicted in the film, an attorney cannot represent a potential client in a divorce if their spouse has consulted with the attorney previously. By proactively meeting with many of the best law firms before Driver finally gets the ball rolling on his end, Johansson greatly reduces Driver’s choices for representation.
Note that Johansson does this without having to hire any of these firms—merely by consulting with them, she creates a conflict of interest that bars attorneys in those firms from ethically representing Driver.
Lesson #3 for your Virginia divorce: consult with an attorney early in the process. To avoid Driver’s fate, consult with an attorney as early in the process as possible, if only to preserve the option to retain suitable counsel should proceedings commence.
Behavior of the Attorneys
Finally, throughout the film, Marriage Story portrays a sense that the parties’ separation could have remained amicable, but for the involvement of lawyers. The hyperbolic portrayal of the parties’ attorneys in Marriage Story serves as an extreme example, but is not what you should expect in your Virginia divorce. The majority of divorce cases in Virginia settle, either through the settlement negotiations of counsel or through mediation. One party’s hiring an attorney does not mean that party is acting aggressively, but simply that they are protecting their own interests. Amicable divorces occur far more often than the extremely litigious and exhausting legal battle shown in Marriage Story.
Divorce is a unique area of the law that requires attorneys to understand and safeguard the personal, financial and emotional needs of their clients. The best divorce lawyers are able to do that. However, the attorneys in Marriage Story lose sight of the actual needs of their clients, and instead focus only on “winning.” In doing so, they disregard the personal, financial and emotional costs to the family involved (Driver, Johansson and their son).
Every family comes with their own unique back story and goals for the future. A family law attorney’s job is to keep those goals in mind while also ensuring a fair and equitable outcome for their client. The tension, heartbreak and sense of loss depicted in Marriage Story is a reality for many couples navigating separation and eventual divorce. With considerate counsel who put the needs of their clients first, the process can feel significantly less daunting, enabling families to take control when life seems to be otherwise spiraling.
Lesson #4 for your Virginia divorce: choose your attorney carefully. Find an attorney who will put your needs first, who understands that your divorce is about you and your family, not the attorney’s ego.
The family law attorneys at Livesay & Myers, P.C. have years of experience and a track record of putting our clients first. If you are facing a divorce or custody case in Northern Virginia, contact us to schedule a consultation today.