Seeking a 'healthy divorce'? Here's what 'Marriage Story' got right (and wrong)

Family law attorneys share their thoughts about embarking on a 'nicer' divorce, and where “Marriage Story” rang true — and where it didn't.
Adam Driver and co-star Scarlett Johansson in "Marriage Story" on Netflix.
Adam Driver and Scarlett Johansson in "Marriage Story" on Netflix.Netflix
Get the Better newsletter.
SUBSCRIBE
By Nicole Spector

Today is National Divorce Day, a peculiar “holiday” if ever there was one, but one that’s not exactly unprecedented given the surge of divorce filings this time of year.

“January has always been a busy time for us,” says Laura Wasser, a family law attorney in Los Angeles (who may or may not have been an inspiration for Laura Dern’s character in the Golden Globe-nominated “Marriage Story”). “I think people want to get through the holidays and start the new year making movement towards their next chapter.”

Divorce may be common (according to the American Psychological Association, between 40 and 50 percent of U.S marriages end in divorce), but it’s far from simple — and things can get really ugly (and insanely costly) fast; however, there are steps you can take to make the ordeal smoother. Wasser and other family law experts lent their top tips for embarking on a healthy divorce, and also shared their thoughts on where “Marriage Story” rang true, and where the film traded in fact for fiction.

Get educated before you even bring up divorce to your spouse

“Education is key, and should be your first step,” says Wasser. “A lot of people get married and they don't know the law in their state. There’s a lot of ‘coulda, shoulda, wouldas’ in that regard, and now [upon divorce], they’re learning the law in terms of support, child custody, division of assets, etc. It’s important to get all of that information as soon as you start thinking about divorce. Look at websites, listen to podcasts and connect with community.”

Wasser founded It’s Over Easy — an online platform that offers resources and tools to navigate the divorce process (note: this service does not provide or replace legal counsel). Pricing ranges from $750 to $1500, though you can access some materials, like the podcast “Divorce Sucks! with Laura Wasser” without paying.

Get a therapist (for emotional and financial reasons)

Divorce, no matter how necessary and amiable — is an emotional process. Some lawyers, like RoseAnn C. Branda, an executive partner and co-director of the Family and Matrimonial Law department at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, will possibly decline to work with you if you don’t already have a therapist.

“Anyone going through divorce needs an emotional outlet to discuss the irretrievable breakdown in a relationship,” Branda says. “To keep legal costs down and get assistance, a therapist is something you need.”

Your therapist can also help you discuss ways to broach the topic of divorce with your spouse.

Get organized with finances and your healthcare situation

It’s imperative that you know all the financial details of your marriage.

“Make sure you understand your financial situation, meaning where the income is coming from, what are the expenses to run your home, what debt/liabilities are associated with assets, where is it all located, what the account balances are, and the percentage of interest of real estate and businesses owned,” says Branda. “Do as much homework as you can to avoid waste of cost and time.”

One area Wasser has seen clients overlook here is healthcare. If you’re on your spouse’s insurance plan, divorce will end that, so make sure you take next steps for coverage into consideration.

Consult a lawyer

Can you technically go through divorce without a lawyer or mediation? Yes, if both spouses are willing and comfortable (and neither has retained a lawyer) — you can go straight to the paperwork, with which a paralegal must assist you.

“Some people come to me and say I want a $300 divorce,” says Sonia M. Frontera, an attorney who specializes in collaborative divorce in New Jersey, and the author of “Do You Keep Your Husband Or Do You Post Him On Craigslist?” “But when you do this, you're only working with a paralegal who will fill out the forms for you. They do not give you legal guidance.”

In cases where there are no assets on the table, no kids in the picture and both spouses are on the exact same page — divorcing this way might be just fine; but this is more the exception than the rule: Things get complicated, and at the end of the day, divorce is a legal process.

“People get very afraid that divorce is costly,” says Branda. “One major factor people don’t realize though, is how important it is for a divorce attorney to help you understand the facts of the case.”

At the very least you should book a consultation with a lawyer to know your rights. If you don’t know where to begin, talk to friends who have gone through divorce for potential referrals, which Branda advocates as “your best bet.” Your therapist should also be able to give you a referral to an attorney who specializes in family law.

Your legal consultation, Branda highlights, should include the following:

  • A breakdown of options for how to proceed with divorce and in what order
  • An assessment of the issues that need to be resolved
  • A comprehensive explanation of the laws in your state, and your rights
  • A discussion for the potential for mediation (we’ll discuss mediation more later)
  • You’ll pay between $200 and $700 or so, though it depends on the location.
  • “Marriage Story” got it right when it showed Driver’s character barred from working with certain attorneys because his soon to be ex-wife had previously consulted with them. Once a lawyer knows any details of your divorce case through one party, they legally cannot so much as consult with the other party; however, unlike in the movie, you can expect to know this prior to showing up to the appointment.

Now, what you should not expect in a consultation, is what we saw Laura Dern’s character do in “Marriage Story”. Remember when she cozied up next to Johansson on the couch with her shoes off? That struck Branda as highly unrealistic. Such behavior might be perceived as a bit of a red flag because your lawyer should maintain professional boundaries.

Up the self-compassion. Stress is bound to intensify

“When there are children, pets, homes, accounts, in-laws, maybe businesses involved in the split, it can become very difficult to keep your calm and cool,” says Barbie Atkinson, a licensed professional counselor. “[Divorce] literally taps into your amygdala activation because it is not only ‘perceived’ as a danger or threat, it is one. Having compassion for yourself will be the first thing that I would recommend. Then, eating well, sleeping well and exercising so that you can have the energy to work with the feelings. In my practice and groups, I talk a lot about deep belly breathing or diaphragmatic breathing. This can help your nervous system not stay frayed or in F3 (fight, flight, freeze). Deep belly breathing gives your body the message, ‘I'm OK. I'm here. All will be OK.’”

Commit to good communication with your soon-to-be ex

“Being divorced is another form of a relationship, so, if you had a hard time communicating, were passive aggressive, etc., it will show up in divorce, even more so,” says Atkinson.

Do your best to do better. It really will save you money and stress.

“You may not have had great communication during the marriage, but now is the time to work on that,” says Wasser. “This is particularly important if you have kids. Communication is as important as education.”

Aim for mediation over a trial (therapy can help here, too)

At the beginning of “Marriage Story”, we see a couple that is aiming for an amicable divorce at a mediation appointment. “Ah, if only Johansson’s character had just read her letter,” you may have thought as I did at the end of the movie. “They could have avoided that whole awful process, sparing both themselves and likely their son some trauma!”

Branda agrees, but notes that this isn’t the wife’s fault, per se.

“Johansson’s character was not far enough along emotionally to be able to sit in a mediated session and attempt to resolve the matter amicably,” says Branda. “That was very realistic.”

This is why a therapist, again, is so important. I’d add that the character of the husband also wasn’t emotionally ready for mediation. Remember how he kept going on about how he liked what he wrote and wanted to share it, regardless of whether his wife wanted to share hers? Yup, he too had some hurdles to overcome.

If you have a good divorce attorney (and no crimes, including domestic violence have been committed), they’re going to try to get you into mediation as soon as possible. That’s ironic, perhaps, because that usually means less money for them, to an extent. Why are they so keen to see you settle out of court? Because they realize, as Wasser puts it, that “there’s no winner in a divorce trial”.

But what exactly does mediation entail? Regina DeMeo, a family law attorney who practices in Maryland and D.C explains.

“In mediation, I sit down with both parties and we go through the issues that need to be addressed in their separation agreement,” says DeMeo. “I do not represent either party, and instead simply guide them in their discussions re: child support, custody, alimony and/or property division. I make sure they take turns, remain respectful, and stay on point. We try our best not to rehash the past, but rather focus on the future. They are encouraged to freely brainstorm solutions, knowing everything is kept confidential. It is critical to understand that we all sign an agreement upfront that no settlement offers can be discussed in court, and they understand that I will not be going to court with them. Before they sign the final separation agreement, I do encourage each party to review it with his/her own counsel. I also give them the court forms for an uncontested divorce so they can file everything themselves once we are done with mediation.”

Mediation is always less costly than going to trial, but that doesn’t mean it’s cheap. DeMeo says that in Maryland, a single two-hour mediation session would cost about $1200. “Obviously, the more sessions they need, this cost will go up because we all charge by the hour,” she says.

Once it’s over, it’s over — but nothing will happen without you knowing about it

Just as it’s impossible to put a universal price-tag on divorce, it’s impossible to lay down a timeframe. Even if you and your spouse are just filing the papers, without any lawyers or mediation proceedings, you will have to wait months (how many depends on your state) for the divorce to be finalized.

But once it’s over, it’s over. There’s no taking anything back or altering the outcome. This is a plot point where “Marriage Story” erred: When the divorce is finally done, Dern’s character sidles up to Johansson and tells her that she got her a little bit more custody than 50/50. It was a vengeful vanity move on Dern’s part, and one that Johansson did not sign off on. This doesn’t happen in real life (or at least, it shouldn’t).

“Yes, lawyers can be abrasive and combative, even when their clients don’t want that, but the lawyer’s job is to get what the client wants,” says Branda. “The client would need to know and the other lawyer would not be able to agree to it without their client’s consent.”

NEXT: How one couple saved their marriage by asking each other this simple question

Want more tips like these? NBC News BETTER is obsessed with finding easier, healthier and smarter ways to live. Sign up for our newsletter and follow us on Facebook, Twitter and Instagram.