grandparents visitation rightsUnder certain circumstances, such as death or divorce, a custodial parent may choose to limit or terminate a child’s visitation with a set of grandparents or other relative. Understandably, those relatives may have a strong desire to maintain a relationship with the child and may wonder what their legal rights may be in this situation. Though gaining visitation over a parent’s objection may be difficult, it is not always impossible, and an experienced family law attorney can evaluate your situation and advise you of your legal options.

§ 20-124.2 of the Virginia Code sets out the law for custody and visitation determinations of minor children. The law states the court must respect the parent-child relationship as the primary relationship, and in most cases should trust the parent’s judgment in making good decisions for the child. However, the law also gives “any other person with a legitimate interest” the opportunity to bring evidence that visitation with them would be in the child’s best interest.

Though the law does not specifically list all potential persons with a legitimate interest, however such persons may include:

  • Grandparents
  • Stepparents
  • Former stepparents
  • Adult siblings
  • Aunts or uncles
  • Other blood relatives or family members

If one of the above parties has been cut off from the child, they must present “clear and convincing” evidence that visitation with them would be good for the child. Clear and convincing means that the person seeking visitation must show it is highly and substantially more likely to be true that visitation would serve the best interest of the child. For example, if a grandparent had a very close relationship or care-giving role in the child’s life, suddenly preventing visitation may be emotionally harmful for the child. Also, if the relative can provide evidence that the parent is somehow causing harm to the child, the court will usually make an exception and intervene.

While gaining visitation over a parent’s wishes may be a difficult task, Virginia courts have and do award visitation rights to grandparents and other close family members under some circumstances. Your first step in trying to attain visitation rights should always be to call the Law Offices of Raymond B. Benzinger at (703) 312-0410 for help. Mr. Benzinger has extensive experience in visitation cases and other family law matters and can help you with your case.

divorce modificationThe terms of a divorce decree usually reflects what is best and fair for the parties based on their circumstances at the time of the divorce. However, as we all know too well, circumstances can unexpectedly change over the course of time. Therefore, what worked for one or both parties at the time of the divorce may no longer be feasible or practicable after years have passed.

For example, imagine a family that has a husband with a full-time job, a wife with a part-time job, and two children. At the time of the divorce, the court may award joint custody of the children, and order the husband to pay monthly child support and alimony to the wife. A few years pass and the wife lands a high-powered job in a city four hours away. Meanwhile, the husband has been suffering from medical problems and can now only work part-time. The husband can no longer afford to pay the originally ordered support payments and, furthermore, the wife no longer requires additional financial help. Also, regularly traveling four hours each way to continue the joint custody arrangement is likely no longer in anyone’s best interest. Often, after some time has passed, the court will find that the circumstances of one or both of the parties in the divorce have changed substantially enough to warrant a modification to the original divorce agreement.

In many other situations, though a divorce agreement will contain numerous provisions regarding property division, custody, support, and more, a party may ignore one or more of those provisions. In such cases, the court may be petitioned to enforce the original terms of the agreement. For example, if the wife in the above hypothetical scenario did not allow the husband to see their children, she would be violating the court-ordered custody arrangement and the husband could ask the court to enforce it.

Obtaining such a modification or enforcement does require a return to court, which may seem daunting for many people. However, an experienced family law attorney at the Law Offices of Raymond B. Benzinger can help make this process easier for you and achieve a positive result for you. Call us today for assistance at (703) 312-0410.

alimonyAlimony is a court-ordered payment made by one spouse to another following a divorce, and is often referred to as spousal support or maintenance. Alimony was very common decades ago, when many households consisted of one spouse who was the breadwinner and the other spouse was a homemaker. In modern times, alimony payments are less prevalent as spouses are often both in the workforce. In such situations, both spouses will have the ability to support themselves following a divorce and have no need for alimony.

However, alimony is still awarded in numerous divorce cases. There are three main types of alimony in Virginia: 1) Temporary alimony, which is awarded prior to divorce for support during separation; 2) Rehabilitative alimony, which is awarded for a specified period of time to assist one spouse while they seek work and become self-sufficient; and 3) Permanent alimony, which is awarded until the remarriage or the alimony recipient or the death of either spouse.

In Virginia, the Divorce Code of 1980 allows a court to award alimony when it finds that such alimony is “necessary.” In determining whether alimony is necessary, courts often examine several factors. Some of these factors include:

  • Length of the marriage
  • Age of the spouses at the time of divorce
  • Health of each spouse
  • Relative current income of the spouses
  • Education level of each spouse
  • Future earning potential and financial prospects of each spouse
  • Whether there was fault in the breakdown of the marriage
  • Financial need of the proposed alimony recipient
  • Ability to pay of the proposed alimony payor

In some situations, the financial stability and earning capacity of each spouse may be so disproportionate that it is only fair that one party pay alimony to the other. However, if a spouse simply chooses to remain unemployed despite the ability to successfully earn a living, it should not be the working spouse’s responsibility to continue to support them.

Overall, alimony determinations should be fair. Attorney Raymond Benzinger has extensive experience handling divorce cases involving alimony from both the side of the recipient and the payor, and will work to make sure his client receives a fair result. If you are facing divorce, call the Law Offices of Raymond B. Benzinger today at (703) 312-0410.

high asset divorceProperty division is always a major factor in divorces. For some couples, this determination is relatively simple, as they may not have many assets or even own a house together. However, for couples with a high net worth, property division may be exponentially more complex. Because there is so much on the line, it is especially important that you consult with an experienced attorney if you are considering divorce and you have significant assets.

Some assets that may be at issue in a high net worth divorce include:

  • Real property, including the primary residence, real estate properties, and vacation homes.
  • Personal property, such as motor vehicles, recreational vehicles, jewelry, art collections, antiques, furniture, and more.
  • Bank accounts
  • Business entities
  • Stocks or corporate stock options
  • Investments, which may be interstate or international
  • Retirement accounts

In order to ensure an equitable division of the above assets, a couple must first determine the value of all of those assets. This may be quite the endeavor, as a couple may have property, investments, and other assets all over the world. Furthermore, valuation of assets may be difficult because one spouse may attempt to hide certain assets, may have overseas accounts, or may have concealed certain sources of income from tax returns. For these reasons, valuation in high net worth divorces often requires the assistance of financial experts. An experienced high asset divorce attorney knows which experts are reliable and cost effective in order to ensure you receive a fair division of property.

Additionally, property division can be directly related to spousal support payments for the spouse who has less earning power. An experienced Virginia divorce lawyer can help you decide whether it is in your best interest to receive higher alimony payments and less property, or vice versa. An attorney can help to make sure your current high standard of living is preserved following a divorce.

Many couples with a high net worth also do not want details of their financial matters exposed to the public. The Law Offices of Raymond B. Benzinger will handle your high assets divorce with discretion and respect for your privacy. If you are facing a high net worth divorce, call (703) 312-0410 to schedule a consultation with Raymond Benzinger today.

Division Of Property A married couple often has a decent amount of property and assets. First, each spouse likely came into the marriage with some property of their own. Next, the couple likely acquired a significant amount of property during the course of the marriage. When a couple divorces, how that property will be fairly divided is an important issue that should never be taken lightly. You should always have the assistance of an experienced attorney to ensure you receive a fair and equitable property settlement.

First, an attorney will help you differentiate separate property from marital property. In Virginia, only marital property will be divided between the spouses. Separate property usually includes:

  • Property owned prior to the marriage
  • Gifts to one spouse from a third party during the marriage
  • Inheritance received by one spouse during the marriage
  • Some personal injury settlements

Almost everything else acquired during the marriage is considered marital property.

Furthermore, equitable division of property does not always mean that a couple splits everything 50/50. Sometimes, it makes more sense for couples to negotiate and make trade-offs with certain types of property or assets. For instance, in many circumstances, one spouse—especially a custodial parent—will want to remain living in the family home. In such situations, it would not make sense to sell the house and divide the profits. Instead, deals can be made so one spouse takes over ownership of the home and the other spouse receives compensation for their share in a different, fair manner.

If the spouses cannot agree on the property division, they may want to try alternative dispute resolution (ADR) before dragging the argument into court. Raymond Benzinger is experienced in mediation and conciliation services to assist couples in negotiating and reaching an agreement on property division without the expense, stress, and time delay of litigation.

No matter whether you have a little bit of property or a very high net worth, property division is one of the most important determinations in every divorce. If you are facing divorce, do not hesitate to call the Law Offices of Raymond B. Benzinger at (703) 312-0410 for assistance today.

US Army Soldier UniformEvery divorce can be complicated. However, if one or both spouses are members of the United States military, unique laws and complications will apply. While military couples must make the decisions regarding child custody, child support, property division, and alimony as civilian couples, there are specialized procedures and rules that must be followed in military divorces. For this reason, you should always seek representation from a Virginia family law attorney with extensive experience handling military divorces.

Some unique issues in military divorces include the following:

  • Service may be difficult. Divorce papers, like any other court matter, must be personally served. Because a military spouse may be overseas, in a confidential location, or even on a ship, service can be challenging.
  • The divorce may take longer. The Servicemembers Civil Relief Act (SCRA) protects active military members from being sued while on active duty by allowing them to postpone court proceedings. Divorce is no different, so an active military spouse may be able to put proceedings off for a period of time following the end of active duty.
  • There is a cap on child and spousal support. A servicemember will not be required to pay more than 60 percent of their wages in child support and alimony.
  • Civilian spouses may still receive military benefits. In situations in which the marriage, military service, or both have lasted for 20 years or more, the military spouse may qualify to continue receiving benefits.
  • Retirement benefits may be allocated differently. While state law applies to divorces in Virginia, federal law determines a civilian spouse’s entitlement to military pensions under the Uniformed Services Former Spouses’ Protection Act (USFSPA).
  • There may be jurisdictional complications. If a military member is stationed in one state, but holds a permanent residence in another, deciding where to file a divorce may be more complicated.

Divorce attorney Raymond B. Benzinger has significant experience handling military divorces and can let you know which of the above complications may apply to your particular case. If you or your spouse is a member of any branch of the United States military, do not hesitate to call the Law Offices of Raymond Benzinger at (703) 312-0410 to set up an initial consultation.

 

contested divorceJust like no two marriages are exactly alike, no two divorces are exactly alike either. Every couple who wishes to seek a divorce should weigh all of their options to choose the right solution for them. Some couples come to agreements on their own and never step foot in a courtroom. Not every couple who cannot agree must go to trial, however, as there are other alternatives such as conciliation and mediation, which can help a divorcing couple negotiate and come to an agreement without dragging the issues into court. Some couples are simply unable to compromise on numerous issues and spend time, money, and energy on hearings and trials. No matter what kind of situation you are facing, you deserve quality representation by an experienced family law attorney who can help you determine what is best for you.

The following are the types of divorce in Virginia:

  • Contested divorce—In a contested divorce, the two parties do not agree about either getting a divorce in general or about the specific terms of the divorce. There are many issues that must be settled in a typical divorce, such as child custody determinations, property division, debt division, and spousal support. If a couple does not agree, they may need mediation or the court to help them settle the terms of the divorce.
  • Uncontested divorce—In an uncontested divorce, the couple agrees that they should get a divorce and on all terms of the divorce. This type of divorce often costs less, is less complicated, and takes less time. In fact, if a couple does not have children, they may be granted an uncontested divorce after a six month separation period.
  • Limited DivorceA limited divorce is a lot like a legal separation, as it does not legally end a marriage, but does determine how a couple is going to live apart. A limited divorce will decide custody and financial arrangements for the couple.

In order to determine what type of divorce works best for you, you should always consult with an experienced family law attorney at The Law Office of Raymond B. Benzinger. Call today at (703) 312-0410 to schedule a consultation, or use our online contact form here.

court terminating parental rightsHaving your child taken away is almost every parent’s nightmare.  However, under some circumstances, Virginia authorities and courts have the power to do just that by terminating your parental rights.  Such matters are handled in the juvenile courts, which has its own particular set of rules and procedures separate from the regular court system.  Therefore, if your parental rights have been put in jeopardy, you always want to contact an attorney who has extensive experience with juvenile courts so you have the best chance of keeping your child.

In order for Virginia courts to involuntarily terminate your parental rights, they must find three things:  that termination is the best thing for the child, that the child is seriously threatened by neglect or abuse, and that it is improbable that the circumstances will change in a reasonable amount of time.  Some examples of specific situations in which a court may decide to terminate your parental rights include:

  • A parent abandoned the child.
  • A parent cannot perform parental duties because of mental illness, mental deficiency, or addiction, and reasonable rehabilitation efforts have failed.
  • A child has been subjected to chronic or severe physical or sexual abuse or torture.
  • A child has been in foster care for six months without any communication attempts by the natural parent.
  • A parent was convicted of felony assault or sexual assault of another one of their children or a child living with the parent; murder of voluntary manslaughter of another one of their children or a child living with the parent; or attempt, solicitation, or conspiracy for any of the previously mentioned offenses.
  • A parent has had parental rights of another child terminated for any of the above circumstances.

Whenever your parental rights are questioned or threatened, you need to secure representation by an experienced family law attorney as soon as possible so he can begin working to protect your rights.  Contact the office of Raymond B. Benzinger for an assessment of your case.

26 Nov 2013

What is a Limited Divorce?

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divorce decreeCouples who separate, even for a short time, must deal with many different issues including who pays the bills, who gets the house, who gets the kids, and much more.  Unlike most states, Virginia does not grant legal separations for this type of circumstance.  Instead, if you are separated though not yet seeking a full divorce, Virginia courts may grant you a “limited divorce.”  A limited divorce will set guidelines for you to live apart without legally ending your marriage.  If you and your spouse are considering separation, you should first contact an experienced family law lawyer in Virginia to see if a limited divorce is right for your situation.

Why would I want a limited divorce?

People seek limited divorces for several reasons.  Some of these reasons include:

  • Possible reconciliation:  If a couple wishes to continue working on the marriage while living apart, a limited divorce can help sort out finances, custody, etc. during the separation.  Additionally, sometimes one spouse just needs to work on issues separately, but intends to return to the marriage at a future date.
  • Benefits:  Many people choose to remain legally married, despite separation, in order to remain on a spouse’s health insurance plan through his or her employer.
  • Religious reasons:  Some couples have religious beliefs that forbid them from getting divorced, therefore a limited divorce will allow them to live separately while remaining technically married.

Limited divorces are similar to a permanent, or absolute, divorce, with some key differences.  For example, since you are still legally married under a limited divorce, neither you nor your spouse may legally remarry anyone else.  Furthermore, neither you nor your spouse may have sexual relations with another person without technically committing adultery.   Such adultery may then be adequate grounds for an absolute divorce if your spouse wishes to seek one.

Limited divorces are a good solution for certain couples.  Do not hesitate to contact the offices of family law attorney Raymond B. Benzinger if you have any questions regarding your options.

divorce thoughtsA Virginia court will not simply grant a divorce because two people ask for one.  Divorce is a permanent and drastic measure for a married couple, one which courts do not consider lightly.  Therefore, when you petition a court in Virginia for a divorce, you must give a reason.  These reasons are called “grounds.”  The acceptable grounds for divorce vary from state to state, so you should always consult with a family law attorney familiar with Virginia law if you plan to file for divorce in Virginia.  Furthermore, you cannot simply make up grounds for divorce and expect the court to believe you, because the court will require you to provide evidence of the grounds you stated.

Virginia divorce law sets out the following possible grounds for divorce:

Voluntary separation—This is the ground for a “no-fault” divorce, meaning one spouse is not blaming the other’s actions for the failure of the marriage.  When two people have voluntarily lived apart continuously for one year, they have satisfied grounds for a no-fault divorce.

Adultery—In Virginia, one spouse must actually have sexual intercourse with another person outside the marriage to be an adulterer, as other sexual acts do not qualify as adultery or grounds for a divorce.

Cruelty—In order to be adequate grounds for divorce, cruelty generally must endanger a spouse, render continuing to cohabitate unsafe, or cause bodily harm.  Cruelty can also include abusive language, insults, and other verbal behaviors that endanger mental and emotional health.

Desertion—There are two types of desertion: actual and constructive.  Actual desertion means one spouse packed their bags and left.  Constructive desertion means that one spouse “leaves” the relationship, but not necessarily the shared home, and causes the divorce-seeking spouse to move out.  This can include cruel behavior, prolonged willful refusal of sex, or other destruction of the home life.

Felony Conviction—This qualifies when one spouse is convicted of a felony, is incarcerated for at least one year, and the other spouse does not voluntarily resume cohabitation afterward.

Proving grounds is necessary for the court to grant your divorce.  If you are seeking a divorce, always contact family law attorney Raymond B. Benzinger for help with your case.


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