By: Jeff J. Horn, Esq.
The Netflix movie, Marriage Story, written and directed by Noah Baumbach deserves the significant news coverage it has received. The acting performances by Adam Driver as the Husband, Scarlett Johansson as the Wife, and Laura Dern as the Wife’s manipulative Hollywood lawyer have all receive award recognition. It is a terrific movie as a piece of art and chock full of lessons for the spouse heading toward, or in the middle of, divorce.
The lessons include complex issues of jurisdiction and removing the child from one state to another state. We may address those in a separate article. This piece addresses the financial side of the picture only.
Income As An Asset
One of the movie’s most lively scenes involves Laura Dern barking at Ray Liotta, who plays the Husband’s fast-talking and high-priced lawyer, about what income of the other each will be demanding. The Wife has taken a role on a television show and will be paid for the season. We can presume that, since it is the first season of the show, her acting income will be less than princely, but attractive enough for her to take the job and work this initial season. The Husband’s lawyer demands a distribution from the Wife’s TV show acting income.
This money grab is in response to the Wife’s lawyer demanding half of the grant money that the Husband received for theatrical performances. The Husband murmurs that the money is for paying the cast and crew to put on his plays. The Wife’s lawyer reminds him that it was deposited into a joint account.
So – the question is…. Are these types of funds income or assets? For the Wife working as an actress and being paid for a TV show, the answer is clear. That is her income. Income is not an asset. We don’t simply mechanically split income the moment it hits the bank account. Income is utilized to meet the needs of the family and to pay for the necessary expenses of their young child. The Husband’s income is a little bit trickier. He receives a grant paid in annual stipends. He receives the money in his own name and then deposits it into the parties’ joint personal account. He then utilizes the money for the payment of expenses related to theatrical performances. When that chunk of money hits the family coffers, what is it? If it is deployed as the capital necessary to operate the Husband’s play-directing business, it is just that – working capital. If there is a surplus, that is the Husband’s income.
I am reading into the facts a bit, but one would assume that the grant application was submitted, the entity or foundation approved the application, and the Husband signed an agreement that the funds would be utilized to put on plays. Paying alimony or distributing the money to his Wife as an asset in divorce is certainly not part of the deal. Both parties are blindsided by the other attorney’s attempt to grab money that, by all accounts, neither spouse was actively pursuing. Income is not an asset, but income can certainly be considered in the calculation of child support. Income can certainly be considered in the discussion of alimony.
Income For Support
The parties in the movie have very different sorts of income. They do not have regular paychecks that land in their bank account every other week. The Wife is an actress. She gets paid well when she works and nothing when she does not work. The Husband, likewise, has an inconsistent flow of income. He may be paid a Director’s fee. He does complain that he agreed to direct “two shitty plays” to pay for the divorce litigation. He may enjoy a profit-share, or he may have a lot of his compensation risk related to the success and critical treatment of his work. This is a very clunky way to calculate income.
When spouses have highly variable income, a walk-through recent history will be essential. Perhaps a three-year or five-year average will paint a realistic picture.
That is not the only way to think about income or support. Perhaps, one spouse is on a roll earning unprecedented income because of a particular play or a TV show. Is it fair to utilize a high watermark for one spouse’s income when that might last for one or two or three years? Cooler heads may cause the parties to stash away some of that additional income for future dry spells. In the future, a spouse may not be able to pay support because of a lack of income. College education may need to be saved for in chunks rather than consistent drips.
In a final ironic twist, the Husband takes a one-year fellowship – a sort of job – after the parties have fought nearly to the death and resolved their case. Should they go back to the drawing board or move on with life? Courts recognize a right to seek modification of support arrangements, not asset and debt distribution, but loathe cases that come back before the ink on the divorce has sufficiently dried.
The parties went to a mediator in New York. The Wife was still too hot under the collar to communicate openly and let the Husband and the mediator know. We did not know at that point that the Husband had an affair with a member of the crew in the play he was directing, and the Wife was starring in.
The Wife got on the TV show in Los Angeles and hires her attorney, a high-powered and high-priced divorce lawyer. The Husband put his head in the sand. He goes to the Ray Liotta character who tells him “I am $950 per hour” then points to an associate and says, “he’s $400”. If you have a stupid question, you call Ted.”
The retainer demanded is $25,000. The Husband stumbles over this number saying he doesn’t even have $25,000. He is also advised that he will likely be required to pay some of the Wife’s legal fees as well. He leaves in dismay and in disbelief.
The Husband finds himself to another lawyer, played by Alan Alda. Alan’s character is $450 per hour and requires a $10,000 retainer. They have a sensible conversation. The Husband hires the Alan Alda character.
The two spouses and two lawyers meet to try to work through some key issues. Alan Alda cools the sidebar and brings the Husband into a private room. The Husband is looking for simple answers and the Alan Alda character has him completely spun around. They inched toward progress, hoping to show up on record and finalize the case. At court, the Husband has secretly switched teams and went back to the Ray Liotta character and they wage a high-spirited argument.
This is highly fictional – lawyers don’t get to sit in court and bash each other while the judge sits silently. But, it’s a fun scene. It’s unrealistic, but both parties suffer from the court trip so much that they retreat from their most angry positions and foster a peaceable resolution with essentially no money exchanging hands.