Interview with Marshall Waller from Feinberg & Waller

You know what they say, criminal attorneys see bad people at their best and divorce lawyers see good people at their worst – Ted, Marriage Story

 **** Spoiler alerts for this article***

It was one of the buzziest films this Oscar season: Marriage Story, nominated for 7 Academy Awards including Best Picture, Best Actor, and Best Actress, saw Laura Dern take home the gold for her supporting role as divorce attorney Nora Fanshaw. Nora, an aggressive litigator, persuades her client Nicole (played by Scarlett Johannsen) to take a scorched earth approach to divorce proceedings. The emotional pain that ensues has resonated with audiences, making Marriage Story one of the most talked-about movies of the year.

We asked Marshall Waller, a certified Family Law Specialist and Senior Partner at Feinberg & Waller in Calabasas, to give his opinion on some of the key issues raised by the film.

At the beginning of the movie, separating couple Nicole and Charlie want to keep their divorce proceedings amicable. Do most clients that come to your office feel the same way?

I think the majority of clients… I see are interested in (amicably)resolving their matter with their spouse. There are always a handful of people who are extremely injured, emotionally upset and hurt who want to lash out at their spouse, some with good reason. Even those people, however, when the emotional and financial realities of a protracted fight… are explained to them, usually come around to a desire for an amicable resolution.

As we explain to our clients at the beginning of every case, “you can either achieve your results the easy way or the hard way.” Generally speaking, the parties to a divorce are going to end up at a relatively predictable place and the parties will decide if they want to get there the easy way or the hard way.

In my opinion, it is always best for spouses to keep things amicable and transparent when taking steps to terminate their relationship.  It is less expensive, financially and emotionally, and it is absolutely the best goal somebody entering into this process can have.

Many see Marriage Story as a biting indictment of the divorce process and divorce attorneys, in particular. The lawyers played by Laura Dern and Ray Liotta steer their clients toward litigation tactics that inflame their relationship.  Do you agree that divorce lawyers tend to heighten conflict?

It is hard to approach a dispute resolution scenario with a gladiator at your side without “heightening conflict.” It is not that we as divorce attorneys are trying to heighten the conflict. Rather, we are hired to do a job and we are under ethical and legal requirements to do our job competently and zealously with an eye towards achieving the goals placed upon us by our clients.

…There were some embellishments and what I would consider to be inappropriate boundary issues that I perceived in the Laura Dern character, but I also perceived that as a desire for that attorney to develop a rapport of trust and confidence with her client, who was presenting to her as emotionally confused and to an extent distraught by the process into which she was falling. And when you think about it, the premise of the conflict was the desire of one parent to take the child away from the other parent and move 3,000 miles to the other side of the country. [This would] undoubtedly change the relationship between the “staying behind” parent and the child for the rest of their lives. When that kind of conflict arises, it is very difficult to achieve an amicable resolution.

In the movie, Nicole takes the couple’s son to LA to film a TV pilot, then decides she wants to stay and files for custody.  When New Yorker Charlie tries to hire a divorce attorney in Los Angeles, he discovers that Nicole has already consulted with many of the top firms in the city. As a result, he is “conflicted out” and cannot work with them. Can you explain how someone is able to block their spouse from legal services in this way and whether it’s common? Is there any way someone can protect themselves from this happening?

Unfortunately, it is all too common that high profile, high asset and high conflict divorces bring to the table these kinds of tactics. These are ethically questionable tactics, but they are very effective. There really is no way to prevent this from happening since a party is free to arrange appointments with whomever they want. The bottom line here is if the prospective client is willing to engage in this kind of charade there is very little that can be done about it. The good news is, in Los Angeles at least, there is a cornucopia of highly qualified divorce attorneys from which to choose.

Could Charlie have handled things differently?

In my opinion, had Charlie started a divorce and a custody proceeding in New York immediately when it became apparent that Nicole was not going to be returning with their child any time soon, he could have secured jurisdiction in the New York courts rather than in the California courts. That does not necessarily guarantee a win for him, but I think it [adds] additional pressure … [for Nicole] to perhaps be more compromising in her approach. It is hard to find compromise, however, in a factual situation such as this, but one compromise scenario would have the child stay with dad in New York and mom would then go to Los Angeles, film her television show, visit during sabbaticals and holidays and then (as she indicated she was going to do in the movie) return to New York where she could have a more “normal” relationship with her child and ex-husband.

How would you have approached this case?

Had I been representing Nicole (or Charlie) I would have encouraged both of them to enter into conjoint therapy with a child custody expert to help each one of them address [their] emotional and highly volatile issues in a non-adversarial and/or peaceful setting. To be fair, the parties did attempt mediation at the beginning of the proceedings, which did not achieve the desired results. A big part of the problem here is that there is no “middle ground” presented: one party wants to live on one side of the country with the child and the other party wants to live on the other side of the country with the child.

From a legal perspective there are a lot of things that the father could have done to ensure a better result…  but that, of course, does not make for good movies. The problem with trying to be a counselor, an advocate and a representative for somebody under [such highly charged emotional] circumstances is that lawyers, like mental health professionals, have to always be on guard to ensure that they do not adopt the emotions of their clients. [This can] cloud their objectivity which renders their advice less valuable. There were instances [of this] shown in the movie.

Do you get many cases where a parent has taken a child out of state and attempted to file for sole custody? Is there ever a justification for doing this?

Over the years I have had many, many cases where a parent has come to me from another state with their children seeking to invoke California’s jurisdiction. It is hard to qualify the basis of those decisions made by these parents. I have had parents who have left an abusive relationship to return home to their [own] parents or to the state in which they grew up, literally running away from an abusive spouse. I have had parents who feel that they have no choice but to take their child to another state because they are not comfortable with the parenting provided by the other parent [due to factors such as the other parent having mental health issues, a personality disorder or choosing to use corporal punishment]. Sometimes a parent has relocated because they are in the military or their job has moved them to a different location, even within the state; a move from San Francisco to Los Angeles is still a long distance [move] and will dramatically impact the relationship between the left-behind parent and the child.

So the short answer is yes, I have had many of these cases and yes, very often this behavior is in fact justified.

What qualities should someone look for when hiring a divorce attorney? How can a client make sure they’re hiring the best person for their case?

When looking for a divorce attorney, I believe the client should be interested in the level of empathy present in their attorney. Many, many clients come to my office and tell me [they want to hire] a “shark” to be their representative in court. They are approaching the litigation as a battle, the courthouse as a battlefield and the lawyers as the paid warriors for each side. These people are generally not thinking of the best interest of their child. It is important to note that it is possible to be a competent and aggressive attorney who advocates ethically and zealously and with empathy.

Competence is of critical importance when hiring an attorney for a family law matter. Do not be afraid to ask your prospective attorney about cases they have had in the past, about where they went to school [and] how many times they have engaged in [your] kind of matter. Feel free to ask your potential attorney how they would approach litigating your case and how they feel about the other attorney. In my opinion, an attorney who regularly and rapidly badmouths his opposing counsel is not an attorney with whom I would want to work.

Red Adair is famously quoted as stating, “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.” I think these are wise words and when someone is hiring an attorney to represent them in a family law matter, especially a custodial matter, look for an attorney who has a lot of experience, has recognition from his/her peers as being outstanding in the community, has a reputation for being fair and reasonable, is someone who is not afraid to field questions about billing without charging you for it, who is responsive in an appropriate manner (it may take them a day to get back to you), someone who is polite and respectful and professional in all of their communications…. In short, take the time to get to know the person who is going to be shepherding you through this process, and realize that many attorneys charge for an initial consultation. As Abraham Lincoln is quoted as saying, “A lawyer’s time and advice are his stock in trade.”

[An] initial consultation is designed to give the potential client an opportunity to get to know the attorney, see how they think, see how they approach their problem, see how they behave as a human being, to see if their personalities match, things like that. You do not have to like your attorney, but you do need to trust them and have confidence in them that they are working their best to help you through this process.

Is there anything else that you’d like to add?

As lawyer movies go, I found Marriage Story to be entertaining and not that far away from how the process really works. The lawyers… were portrayed as real people trying to do the best they could for their clients. The humanity of Nicole and Charlie, in my opinion, was quite real, and that I think is what makes this movie a good movie worth watching. The characters come across as real, and their interactions are very close to how it actually does [play out] during these processes.

**Author Lisa Summers holds a Juris Doctor degree from Osgoode Hall Law School in Toronto, Canada. She has experience in legal research and communications strategy.