FAQ

Elizabeth A. Winter receives many questions about the various aspects of Pre-Marital Agreements, Family Mediation and Estate Planning. In order to assist those who are considering these services, I have compiled the following most frequently asked questions for your information.

Pre-Marital Agreements
Co-Habitation Agreements
Family Mediation
Estate Planning
Bankruptcy

Pre-Marital Agreements

Q. Why see an attorney about a Pre-Marital Agreement prior to Marriage?

A. The most important reason to see an attorney prior to Marriage is to have the opportunity to review the existing Arizona laws pertaining to Marriage and discuss how these laws will work for you under your unique situation. Sometimes, the process leading up to a Marriage is taken up with joyful planning for an event. It is easy to overlook that under Arizona law, Marriage is perceived much like a contract and each party has certain legal rights and responsibilities. Success in a new Marriage can be best supported by having an understanding of Marriage that incorporates a legal perspective.

Q. I am concerned that seeing an attorney about a Pre-Marital Agreement prior to Marriage will make me and my fiancé adversaries.

A. I am concerned too! While an attorney can only represent one of the prospective spouses, I believe it is incumbent upon counsel for each of the prospective spouses to develop a Collaborative process rather than an Adversarial process. I have some ideas on how this might work and hope you will contact me to explore this possibility.

Q. Aren’t Pre-Marital Agreements just for couples who have a lot of property or older couples who have children from a previous Marriage?

A. While classifying property that individuals own prior to Marriage as sole and separate property and making provisions for children of prior Marriages are two important reasons individuals may want to consider a Pre-Marital Agreement, there are other viable reasons to give consideration to a Pre-Marital Agreement. These reasons might include identifying how finances will be managed during the marriage, or how future education of either party will be treated.

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Co-Habitation Agreements

Q. What if we are living together and not getting married?

A. In such situations, a Pre-Marital Agreement is not the appropriate legal document. However, you can still review with an attorney whether a Co-Habitation Agreement is appropriate for you under your unique situation.

Q. Does Arizona law provide for Marriage or Civil Unions between individuals of the same sex?

A. No.

Q. Why see an attorney about a Co-Habitation Agreement prior to Co-Habitating?

A. The most important reason to see an attorney prior to Co-Habiting is to have the opportunity to review existing Arizona law pertaining to your situation and discuss how these laws will work for you under your unique situation. If you find you would like to create alternatives to the outcomes under existing Arizona law, you can obtain legal counsel and advice regarding your alternatives.

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Family Mediation

Q: How long will my divorce take?

A: Many lawyers answer questions with "That depends." It depends upon which route parties select. If parties have a contested dissolution of marriage, it could take over a year to process to a trial date. However, if parties are working toward building agreements in mediation, generally, it will take 2 – 3 months once an agreement is reached on all matters.

Q: Is mediation less expensive than going to court?

A: In addition to being more expedient than going through a contested process in court, another benefit of mediation is that it is less costly than a contested matter. While time and economic factors are very important considerations for most people, the intangible benefits of mediation include every individual being able to retain their personal integrity, responsibility and self respect. In order to create new life directions, these are factors each party needs to keep in tact.

Q: If we mediate an agreement on all issues, how do we finalize a divorce?

A: After an agreement is reached on all issues in mediation, the finalization of a divorce requires a court process. Parties will have options on how to best address this legal process. For example, the Self Service Center at the Superior Court of Arizona, Maricopa County, has propagated forms with instructions for parties representing themselves. Another option would be to have Elizabeth A. Winter prepare legal documents.

Q: What if we have an agreement on some issues but disagree on other issues?

A: Mediation may be applicable to both circumstances. First, ELIZABETH may be able to assist the parties in a thorough exploration of agreements made to date. Second, ELIZABETH may be able to assist the parties in developing remaining agreements that are supportive of agreements already made.

Q: What if my divorcing spouse lives out of town?

A: Generally, mediation is most productive when parties are present at the same time. However, the reality for some individuals is that in separating, sometimes someone relocates outside the state. In such a circumstance, mediation can offer the next best case scenario utilizing telephone or online mediation services.

Q: Can you help us if we are unsure whether we want a divorce?

A: Unlike court processes, which only offer ultimate outcome services such as a legal separation or dissolution of marriage, mediation can offer early intervention and provide individuals more comprehensive choices such as reconciliation. While mediation is not marriage counseling, it can be an appropriate place to identify what each party needs in order to reconcile. And, that may include some form of individual or couples counseling.

Q: Do mediators give us legal advice so we know what our rights are?

A: Mediators would have a conflict of interest if they provide legal advice to parties when serving as a neutral. For this reason, even if a mediator is an Arizona licensed attorney, they could not offer either party legal advice. In fact, the role of the mediator includes supporting each party to see that they have access to the counsel and advice they need, including legal advice, in order to make the best decisions under their circumstances. Parties may look to mediators for joint information, sometimes education, and referrals to legal counselors, but not for individual counsel or advice.

Q: What if I don’t want to be in the same room with my divorcing spouse?

A: The role of the mediator includes preserving the safety of the parties. Given some family histories, it may not be appropriate for some parties to be in the same room at the same time. Or, individuals may have varying comfort levels that would also make it imprudent for them to be in the same room at the same time. After Elizabeth A. Winter has screened for safety concerns, she may be able to offer strategies to allow such individuals to utilize mediation. These strategies may include individual caucus meetings with one person at a time, telephone mediation or on line mediation services.

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Estate Planning

Q. Why do Women need a Will?

A. As women, we can sometimes procrastinate writing a will because we are married and believe our husband’s Will is sufficient or because we are single and busy multitasking. The result of such a belief and failing to be proactive can leave our loved ones in a quandary with financial and emotional burdens. Writing a Will can ensure that our assets are distributed according to our desire by trusted individuals. And, importantly, it can identify who we would like to be named the guardian of minor children.

Q. How often should my Will be reviewed with an attorney?

A. There are two general rules of thumb with regard to this question. First, an individual

should review their Estate Planning, including their Will, every couple of years as, from time to time, there may be changes in state or federal law that pertains to estate plans and wills. Second, an individual should review their Estate Planning, including their Will when there are significant changes in their life, such as: relocation out of state; the birth of new children; marriage or divorce.

Q. Everyone tells me that it is better to have a Trust rather than a Will. It that right?

A. My first response is: “Only take legal advice from your legal advisor.”

However, your question is one worth exploring with your legal advisor. There are legitimate reasons for an individual to have a Will, a Trust or both. Once an attorney has collected information from you pertaining to your assets, liabilities and goals, then that attorney is in the best position to counsel you with regard to appropriate estate planning.

Bankruptcy

Q. What can I keep in bankruptcy?

A. Title 11 of the United States Code provides for exemptions to the property of the bankruptcy estate, these are called “exempt assets.” The Code also allows states to “opt out” of the federal exemptions and create their own exemptions. Arizona is one state that has exercised its opt out prerogative. The Arizona legislature has created statutory provisions creating exemptions that will apply in bankruptcy cases filed in Arizona. Contact Elizabeth Winter to schedule a complimentary one half hour consultation to discuss the exemptions as they apply to your assets.

Q. My spouse does not want to file bankruptcy but I want to. What can I do?

A. While Arizona is a community property state, the right to file a bankruptcy is a federally created privilege that belongs to each individual. Therefore, you may elect to file for bankruptcy while your spouse may elect to not file for bankruptcy. However, filing does have ramifications to the community estate. Contact Elizabeth Winter to schedule a complimentary on half hour consultation to discuss these ramifications.

Q. Do I need an attorney to file bankruptcy?

A. Your access to justice is not restrained by any requirement that you are represented by an attorney. People may represent themselves “pro per.” However, with recent Congressional enactments to change provisions to the Bankruptcy Code, there are many new questions to ask in order to fully understand and adhere to the bankruptcy laws. It is most prudent to hire an experienced bankruptcy attorney to advise, counsel, prepare and file legal documents and represent you before the United States Bankruptcy Court for the District of Arizona.

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Home Pre-Marital Agreements Co-Habitation Agreements Mediation Estate Planning Bankruptcy Biography Testimonials FAQ Resources Contact	FAQ Elizabeth A. Winter receives many questions about the various aspects of Pre-Marital Agreements, Family Mediation and Estate Planning. In order to assist those who are considering these services, I have compiled the following most frequently asked questions for your information. Pre-Marital Agreements Co-Habitation Agreements Family Mediation Estate Planning Bankruptcy Pre-Marital Agreements Q. Why see an attorney about a Pre-Marital Agreement prior to Marriage? A. The most important reason to see an attorney prior to Marriage is to have the opportunity to review the existing Arizona laws pertaining to Marriage and discuss how these laws will work for you under your unique situation. Sometimes, the process leading up to a Marriage is taken up with joyful planning for an event. It is easy to overlook that under Arizona law, Marriage is perceived much like a contract and each party has certain legal rights and responsibilities. Success in a new Marriage can be best supported by having an understanding of Marriage that incorporates a legal perspective. Q. I am concerned that seeing an attorney about a Pre-Marital Agreement prior to Marriage will make me and my fiancé adversaries. A. I am concerned too! While an attorney can only represent one of the prospective spouses, I believe it is incumbent upon counsel for each of the prospective spouses to develop a Collaborative process rather than an Adversarial process. I have some ideas on how this might work and hope you will contact me to explore this possibility. Q. Aren’t Pre-Marital Agreements just for couples who have a lot of property or older couples who have children from a previous Marriage? A. While classifying property that individuals own prior to Marriage as sole and separate property and making provisions for children of prior Marriages are two important reasons individuals may want to consider a Pre-Marital Agreement, there are other viable reasons to give consideration to a Pre-Marital Agreement. These reasons might include identifying how finances will be managed during the marriage, or how future education of either party will be treated. Top of Page….^ Co-Habitation Agreements Q. What if we are living together and not getting married? A. In such situations, a Pre-Marital Agreement is not the appropriate legal document. However, you can still review with an attorney whether a Co-Habitation Agreement is appropriate for you under your unique situation. Q. Does Arizona law provide for Marriage or Civil Unions between individuals of the same sex? A. No. Q. Why see an attorney about a Co-Habitation Agreement prior to Co-Habitating? A. The most important reason to see an attorney prior to Co-Habiting is to have the opportunity to review existing Arizona law pertaining to your situation and discuss how these laws will work for you under your unique situation. If you find you would like to create alternatives to the outcomes under existing Arizona law, you can obtain legal counsel and advice regarding your alternatives. Top of Page….^ Family Mediation Q: How long will my divorce take? A: Many lawyers answer questions with "That depends." It depends upon which route parties select. If parties have a contested dissolution of marriage, it could take over a year to process to a trial date. However, if parties are working toward building agreements in mediation, generally, it will take 2 – 3 months once an agreement is reached on all matters. Q: Is mediation less expensive than going to court? A: In addition to being more expedient than going through a contested process in court, another benefit of mediation is that it is less costly than a contested matter. While time and economic factors are very important considerations for most people, the intangible benefits of mediation include every individual being able to retain their personal integrity, responsibility and self respect. In order to create new life directions, these are factors each party needs to keep in tact. Q: If we mediate an agreement on all issues, how do we finalize a divorce? A: After an agreement is reached on all issues in mediation, the finalization of a divorce requires a court process. Parties will have options on how to best address this legal process. For example, the Self Service Center at the Superior Court of Arizona, Maricopa County, has propagated forms with instructions for parties representing themselves. Another option would be to have Elizabeth A. Winter prepare legal documents. Q: What if we have an agreement on some issues but disagree on other issues? A: Mediation may be applicable to both circumstances. First, ELIZABETH may be able to assist the parties in a thorough exploration of agreements made to date. Second, ELIZABETH may be able to assist the parties in developing remaining agreements that are supportive of agreements already made. Q: What if my divorcing spouse lives out of town? A: Generally, mediation is most productive when parties are present at the same time. However, the reality for some individuals is that in separating, sometimes someone relocates outside the state. In such a circumstance, mediation can offer the next best case scenario utilizing telephone or online mediation services. Q: Can you help us if we are unsure whether we want a divorce? A: Unlike court processes, which only offer ultimate outcome services such as a legal separation or dissolution of marriage, mediation can offer early intervention and provide individuals more comprehensive choices such as reconciliation. While mediation is not marriage counseling, it can be an appropriate place to identify what each party needs in order to reconcile. And, that may include some form of individual or couples counseling. Q: Do mediators give us legal advice so we know what our rights are? A: Mediators would have a conflict of interest if they provide legal advice to parties when serving as a neutral. For this reason, even if a mediator is an Arizona licensed attorney, they could not offer either party legal advice. In fact, the role of the mediator includes supporting each party to see that they have access to the counsel and advice they need, including legal advice, in order to make the best decisions under their circumstances. Parties may look to mediators for joint information, sometimes education, and referrals to legal counselors, but not for individual counsel or advice. Q: What if I don’t want to be in the same room with my divorcing spouse? A: The role of the mediator includes preserving the safety of the parties. Given some family histories, it may not be appropriate for some parties to be in the same room at the same time. Or, individuals may have varying comfort levels that would also make it imprudent for them to be in the same room at the same time. After Elizabeth A. Winter has screened for safety concerns, she may be able to offer strategies to allow such individuals to utilize mediation. These strategies may include individual caucus meetings with one person at a time, telephone mediation or on line mediation services. Top of Page….^ Estate Planning Q. Why do Women need a Will? A. As women, we can sometimes procrastinate writing a will because we are married and believe our husband’s Will is sufficient or because we are single and busy multitasking. The result of such a belief and failing to be proactive can leave our loved ones in a quandary with financial and emotional burdens. Writing a Will can ensure that our assets are distributed according to our desire by trusted individuals. And, importantly, it can identify who we would like to be named the guardian of minor children. Q. How often should my Will be reviewed with an attorney? A. There are two general rules of thumb with regard to this question. First, an individual should review their Estate Planning, including their Will, every couple of years as, from time to time, there may be changes in state or federal law that pertains to estate plans and wills. Second, an individual should review their Estate Planning, including their Will when there are significant changes in their life, such as: relocation out of state; the birth of new children; marriage or divorce. Q. Everyone tells me that it is better to have a Trust rather than a Will. It that right? A. My first response is: “Only take legal advice from your legal advisor.” However, your question is one worth exploring with your legal advisor. There are legitimate reasons for an individual to have a Will, a Trust or both. Once an attorney has collected information from you pertaining to your assets, liabilities and goals, then that attorney is in the best position to counsel you with regard to appropriate estate planning. Bankruptcy Q. What can I keep in bankruptcy? A. Title 11 of the United States Code provides for exemptions to the property of the bankruptcy estate, these are called “exempt assets.” The Code also allows states to “opt out” of the federal exemptions and create their own exemptions. Arizona is one state that has exercised its opt out prerogative. The Arizona legislature has created statutory provisions creating exemptions that will apply in bankruptcy cases filed in Arizona. Contact Elizabeth Winter to schedule a complimentary one half hour consultation to discuss the exemptions as they apply to your assets. Q. My spouse does not want to file bankruptcy but I want to. What can I do? A. While Arizona is a community property state, the right to file a bankruptcy is a federally created privilege that belongs to each individual. Therefore, you may elect to file for bankruptcy while your spouse may elect to not file for bankruptcy. However, filing does have ramifications to the community estate. Contact Elizabeth Winter to schedule a complimentary on half hour consultation to discuss these ramifications. Q. Do I need an attorney to file bankruptcy? A. Your access to justice is not restrained by any requirement that you are represented by an attorney. People may represent themselves “pro per.” However, with recent Congressional enactments to change provisions to the Bankruptcy Code, there are many new questions to ask in order to fully understand and adhere to the bankruptcy laws. It is most prudent to hire an experienced bankruptcy attorney to advise, counsel, prepare and file legal documents and represent you before the United States Bankruptcy Court for the District of Arizona. Top of Page….^
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8655 E. Via de Ventura • Suite G-200 • Scottsdale, Arizona 85258 Phone: 480-991-2535 • Fax: 480-991-2831 E-mail: Elizabeth Winter Serving clients in the greater Phoenix area, including Scottsdale, Fountain Hills, Rio Verde, Paradise Valley, Phoenix, Carefree, Cave Creek, Pinnacle Peak, Mesa, Tempe, Gilbert and Chandler. Copyright © 2008-2009, Elizabeth A. Winter, Attorney at Law website: SonoranSites, Inc.