A scene from “Marriage Story.” Image from official trailer

Which parent in Noah Baumbach’s critically acclaimed film “Marriage Story” committed domestic violence?

If you said the father, then you’re half right. There was a scene where Adam Driver’s character, Charlie, punches a hole in the wall during a heated argument with Nicole, played by Scarlett Johansson. Destruction of property during an argument with a spouse is conduct that will fetch a domestic violence temporary restraining order (“TRO”) virtually every time it’s requested.

But did you catch the mother’s domestic violence? That happened when she hacked into Charlie’s emails, after suspecting he had cheated on her. Hacking into a partner’s electronic communications is one of the few completely nonphysical activities that has repeatedly been held to be domestic violence in published California cases, under the subcategory of “disturbing the peace.” Nicole committed domestic violence as a matter of black letter law.

The elephant-in-the-room in the movie’s otherwise spot-on portrayal of a messy California divorce is that neither parent obtained what some divorce lawyers call a tactical or frivolous TRO. To illustrate how that process works, let’s change the facts of the film to assume Nicole and Charlie live together in Los Angeles when Charlie discovers that Nicole has hacked his emails. We’ll set the stage with Charlie meeting with a divorce attorney, preparing to file for divorce:

Day 1: The attorney helps Charlie write a declaration, describing that Nicole had hacked his emails. The declaration is filed with the court—without notice to Nicole—to support a request for a 3-year domestic violence restraining order to be issued after a hearing, plus a TRO to bridge the gap in time until the hearing.

James Dooley

Day 2: The Court issues the TRO, and sets the hearing on the request for a 3-year order to occur on Day 24. The TRO is given to the police, who notify Charlie they are headed to the family home to serve Nicole. Charlie grabs Henry, age 7, and slips out of the house. Nicole answers the door when the police arrive, and is handed the TRO. The police tell Nicole she is restrained from contacting or coming within 100 feet of Charlie or Henry until at least the hearing on Day 24, and cannot return to the home until at least that time. The police escort Nicole to her bedroom where she gathers clothing and personal belongings for a surprise 3 week evacuation. Nicole leaves, and checks into a local hotel.

Day 4: Nicole meets with a divorce attorney of her own, who tells her to begin preparing to address Charlie’s allegations, but emphasizes that the TRO cannot be undone before the hearing on Day 24. The attorney warns her to strictly comply with the TRO, because any violation by her will be a consideration when the judge decides whether to issue the 3-year restraining order at the hearing.

Day 13: Nicole receives a message Henry sends her on his I-Pad, saying: “Momma, when are you coming home? You’ve been gone so long!!!!!!!” Nicole fights the parental urge to respond with a message that consoles Henry, for fear of violating of the TRO. Desperate just to see Henry, Nicole goes to his baseball game that evening, positioning herself among some trees outside of the 100 foot TRO perimeter. Henry notices Nicole during the game anyway, and takes off running toward her, overcome with tears. Nicole faces the agonizing decision of whether to turn and run away from her distraught son to avoid violating the TRO.

Day 24: It is Nicole’s scheduled day in court, and she has filed a declaration, denying that she hacked Charlie’s emails. But Charlie has brought with him a forensic expert. The judge says there’s no time for expert testimony that day, as she has 10 other restraining order cases on calendar. The judge reschedules the matter for her first available full day hearing, 4 months later. Pending the new hearing date, the TRO will remain in place, except that it is modified to allow Nicole a 5 hour visit every Sunday with Henry.

When Nicole finally has her day in court 5 months after being removed from the home, a win for her will mean no continued restraining orders. However, Charlie will have obtained a leg-up on Nicole when it comes to custody of Henry and other issues in their divorce case, since the status quo has been Henry continuing to live with his dad there in the family residence with mom gone.

If Nicole loses, of course, it will be much worse for her. A litany of bad consequences come with issuance of restraining orders after a hearing, including a presumption that the restrained parent is unfit to have joint or primary custody of the children, and a detrimental adjustment to the amount, if any, of child and spousal support to be ordered.

This atrocious process repeats itself hundreds of times every year in California alone because our system has bent over backwards to protect victims of domestic violence. We have set the threshold showing for obtaining the initial TRO low, on grounds that the inconvenience it causes is a price worth paying.

But while that threshold is low, it is still a hurdle. A TRO applicant generally must show at least some intimidating physical conduct, unless one of the qualifying nonphysical acts—like hacking into emails—applies.

That hurdle will be all but eliminated if a bill under consideration by the California legislature right now, Senate Bill 1141, slips into passage because of the recent push it’s getting from the COVID-19 crisis. The new law would expand the definition of domestic violence to encompass far more nonphysical conduct, to include a type of relationship behavior known as “coercive control.” The statute would list four nonexclusive examples of qualifying misconduct:

  • Isolation from friends, relatives, or other sources of support
  • Deprivation of basic necessities
  • Controlling or monitoring movements, communications, behavior, finances, economic resources, or access to services
  • Forbidding or compelling conduct the partner has a right to engage in or not engage in

If SB 1141 passes, virtually every divorce case will be a candidate to become a domestic violence case, because any divorce attorney worth his salt could write a declaration that falls into at least one of these examples. It will become standard procedure in every case to assess whether to be the first spouse to pull the TRO trigger.

It was the father of the coercive control model himself, Dr. Evan Stark, who observed in 2010 that “there has been a normative sea change in acceptance of physical violence in relationships.” But rather than focus on celebrating this victory, Dr. Stark lamented that it had “caused the domestic violence revolution to stall,” and pushed to continue the revolution by redefining violence to include far more nonviolence.

So far, legislatures have not broadly taken Dr. Stark’s bait, and countless families and children have been better off because of it. SB 1141 should be voted down.

James Dooley is a San Diego divorce attorney at Procopio Cory Hargreaves & Savitch whose practice includes defense of tactical domestic violence TROs.