Ben Affleck, Jennifer Garner Divorce: Lawyers Weigh In On Lack Of Pre-nup, Living Together Post Split

After 10 long years together, Ben Affleck and Jennifer Garner have made the difficult decision to end their marriage. The former Hollywood power couple have chosen to work together, outside of court, to divide their assets as neither party signed a pre-nuptial agreement upon entering into the marriage.

Settling outside of court leaves Affleck and Garner with two options: they can seek out a mediator or hire separate lawyers, each of which will be charged with dividing their assets fairly. Though both are viable options, divorce attorney John Shea of Mirick O’Connell says mediation is the way to go. He claims it is generally a quicker process and is much more cost-effective than hiring two professionals. Shea also says if the pair are getting along, which they claim to be, "that makes it so much easier."

"If people do an agreement by way of mediation, where they use a neutral party — and usually it's a lawyer, but not always — that cuts the cost," Shea explains. "You've got one professional instead of two and you've got one professional trying to get both parties to come to an agreement rather than two separate professionals fighting the other side for their clients."

While settling outside of court may be both quicker and cheaper for Affleck and Garner, it still presents them with a unique set of challenges. According to high-profile lawyer Barry Slotnick, the biggest of those challenges will be the splitting up of assets. He says it is highly likely one party will feel entitled to more than the other, leading to disagreements. Regardless of the path they choose to take, Slotnick says the most important step for this couple, will be getting good lawyers. From there they can begin discussing how they plan to break things up. Slotnick suggests that during this process the couple will have to try to focus on what's important as getting caught up in who gets what in the split could be dangerous to their careers.

"Ben and Jennifer are two important people in the entertainment world and, if they want to continue being significant and important, they should resolve their issues easily and without too much concern about who gets what," he said.

Shea, however, fears the hardest part will come after the divorce is finalized. As we previously reported, Affleck and Garner are said to have decided to continue living together, a practice Shea says is becoming more and more common in estranged couples. While Affleck and Garner claim to be "moving forward with love and friendship," the Massachusets-based attorney fears they could run into problems as they begin seeking out other relationships.

"To me that's fraught with peril because, while it may be commendable now, they've got young children and I understand that, but at some point I suspect both of them will have other relationships and it's kind of hard to have those additional relationships and have your former spouse living on the same grounds," he says. “You don’t have that separation physically that most people have and I think that, again, is fraught with peril.”

Slotnick shares that feeling, saying they will likely "find it very difficult" in time. He fears the decision could cause problems, not only for the soon-to-be exes, but for their three young children.

"Other people will come into their lives and this will create issues," he said.

According to both Slotnick and Shea this case is unusual. Speaking from experience, both attorneys said a majority of people in high-profile relationships have pre-nups in place prior to entering into a union. The legal document ensures that both parties are protected should the marriage end in divorce. Shea says they tend to be focused on assets, though they can cover other things like spousal support, alimony and, for people in the entertainment business, residuary income from TV shows, articles, movies, plays and the like.

Shea speculates that the couple may have opted to tie the knot without a formal agreement in place because “they were in love and, generally, people don’t get married to get divorced.” He suggests they may have thought that, since they were in it for the long haul, a pre-nup was unnecessary. Shea also says that, given both actors’ level of success, they may not have been worried about it at the time. Slotnick shares similar input on their decision to forego the document, saying many people worry getting a pre-nup “augers bad news.”

“I suspect for some people, human nature being what it is, they just don’t want to press that uncomfortable conversation at a time in their life when everything’s supposed to be happy,” Shea says.