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Breaking Up Doesn't Have To Be Hard

Few divorces are friendly, and many are bitterly contested, with spouses fighting to the end over issues ranging from custody of the children to ownership of the summer cabin. But it doesn’t have to be that way, and if you and your spouse intend to part amicably, you might consider a relatively new approach called “collaborative law.” Instead of slugging it out in the courts, both parties agree to work out a reasonable settlement with assistance from their attorneys.

The key is that both of you must sign a contract that prohibits you from going to court, and neither side files for divorce until all the details have been ironed out. “The parties retain lawyers and sign an agreement that they’re not going to litigate,” says Amy Shimalla, an attorney in Warren, N.J. and a leading proponent of collaborative law. “The two spouses and their attorneys all sit down together and work through the issues.”

The collaborative process accentuates the need for cooperation. Everyone is asked to check emotional baggage at the door, and the divorcing spouses are instructed to come to the bargaining table with goodwill and a genuine motivation to achieve an equitable settlement. The attorneys adopt the same spirit. Their goal is to resolve the matter fairly and expeditiously so both parties can move on with their lives.

Shimalla notes that collaborative law provides certain advantages over traditional divorce law methods. “The matter is kept private—there’s no public record—and you can move at your own pace,” she says. “And by avoiding court, you limit your expenses. This saves time and money.” She estimates that about 98% of divorce cases are settled before trial anyway, but that doesn’t mean the normal process isn’t long and stressful.

The attorneys in a collaborative law proceeding don't always work alone. For instance, they may call in a neutral expert such as a forensic accountant to help determine the net worth of a business. Other professionals such as mortgage specialists can provide financial expertise. And the attorneys might utilize a health care professional or divorce “coach” in cases involving emotional turmoil.

Although Shimalla has also acted as a mediator in divorce proceedings, she prefers this new approach. “I'm with the party I'm representing all the way through,” she says. In contrast, mediation requires an objective analysis as a third party without a connection to a client. 

What happens if negotiations break down? The parties can still sue each other in court, but they have to use other attorneys. That has happened in only about one in 10 of the cases Shimalla has handled during the past two years. This new way of breaking up seems to work well and it’s easier to do.

This article was written by a professional financial journalist for Legend Financial Advisors, Inc. and is not intended as legal or investment advice.

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