When Is The Right Time to File for a Divorce or Legal Separation?

Should You Go or Should You Stay?

Ken Peck - Divorce Attorney in Mt Pleasant, SCIt may be the toughest question that you will ever have to answer.

Your friends and family have lots of advice for you. Your counselor has given you many things to consider. Everyone means well, but they cannot make the decision for you.

You’re confused. One moment, you know the answer is that you should file for divorce or a legal separation. The next hour, you’re not so sure.

I know how you feel. I lived through those same emotions, self-doubts, and second guesses before I made the decision to end my marriage and file for a divorce.

Many people thought I should have filed years before. Others thought I was wrong to do it when I did. You may have people saying the same types of things to you right now. You may be saying them to yourself.

In deciding when to file for divorce or legal separation, I learned one critical point:

The right time to file for divorce is when you decide it is.

Only you will know when the time is right. No one can make that decision for you. And, when you decide to file, it will be the right time.

You will have to consider safety, family, and financial issues. You should not base your decision on the answer to just one question. Instead, you must consider and weigh the answers to many questions.

In an attempt to help you, I have prepared answers to some of the more frequently asked questions that I hear as a Mount Pleasant divorce and child custody lawyer.  Perhaps, you will find yourself in one or more of these illustrations.

Safety First

A. Your husband just got pulled over for a DUI in Summerville with your children in the car.

If your marriage is “dead” and if your husband abuses alcohol, there are at least three reasons why now could be the right time for you to file for a divorce or legal separation.

First, you must protect your children. If your husband has a drinking problem, you cannot allow his drinking to endanger your children. By filing for a divorce or legal separation now, you may give him the wake-up call that he needs to turn his life around.

Second, you may have solid grounds to file for a fault-based divorce due to his habitual drunkenness. You can typically complete the divorce process quicker if you have a fault-based reason for filing for divorce. You are also likely to receive a better property division and may get more alimony if your husband’s drunkenness has contributed to your divorce.

Third, your husband has recklessly endangered the lives of your children. In determining child custody, your family law judge may feel compelled to protect your children by minimizing your husband’s time with them. A child custody lawyer in Mt. Pleasant can explain your mother’s rights and how you may receive more child support if your children spend fewer than 30% of their evenings sleeping at your husband’s house.

B. Your wife assaulted you and you ended up in a Charleston hospital

You should file immediately for divorce. You should not continue to risk your safety and allow your children to be traumatized by living in a home where their mother physically assaults their father. You may also need a protection order to keep her away from you and your children.

Physical abuse – like habitual drunkenness – is one of South Carolina’s fault-based reasons for getting a divorce. Consequently, you can probably get divorced quicker and have a better outcome for alimony, child custody, child support, and division of your debts and property, if you file now.

Save Your Family

A. Your wife just moved with your children from Daniel Island to Denver.

You should file for a divorce or legal separation. The only question is whether you should file in Colorado or South Carolina.

You may wonder why you would ever want to file for a divorce in Colorado. That’s a good question.

Before you do anything, you should speak with a divorce and child custody lawyer in Mount Pleasant to consider your options in each state. Divorce laws vary widely from state to state. Depending on your particular circumstance and objectives, it may benefit you to file for divorce in the second state (Colorado in this illustration) instead of filing in South Carolina. If you delay in filing, your children will soon be deemed to be residents of the second state for determining child custody, child visitation, and child support.

Here are two examples of how alimony, child custody, and property division can be affected by the state in which you file for divorce.

(1) Let’s assume that your wife left because you are having an affair. If you file in South Carolina, a South Carolina divorce judge may require you to pay a large amount of alimony each month for the rest of your life, award your wife significantly more of the marital assets because your adultery caused the divorce, and give you limited child visitation.

In contrast, Colorado, like many other states, is a “no-fault” divorce state. A divorce judge in a “no-fault” divorce state will not consider your adultery in deciding the division of marital property or child custody. Further, in the absence of special circumstances, it is very unlikely that you will have to pay much (if any) alimony to her.

If that sounds like two entirely different outcomes with the same set of facts, you’re right. The outcome in your divorce could be substantially different depending on the state in which you are divorced.

(2) Let’s reverse the fact pattern and assume your wife is having an affair. You probably will want to file in South Carolina. Since she has committed adultery, your divorce judge in Charleston, Moncks Corner, or Summerville will be prevented by statute from awarding her any alimony. Additionally, because of her adultery, your South Carolina divorce judge will probably require her to return the children to South Carolina, may award you child custody, and might lean your way in a division of marital property. However, if she files in Colorado before you file in South Carolina, the result might be just the opposite.

Here is the key point: If your spouse or you has moved to another state with the children or is considering an out of state move, you should immediately consult with an experienced divorce and child custody attorney in Mt. Pleasant to learn what your father’s rights are and what your best option may be.

B. Your husband wants to move back into your house on the Isle of Palms.

Unless you want to reconcile with your husband, you should probably file for a divorce or legal separation.

If he insists, you should contact a Mount Pleasant divorce and legal separation lawyer to act quickly. If you allow your husband to move back into your house, it will disqualify you from filing for a divorce on the basis of being separated for one-year. Living together with him could also prevent you from filing for a fault-based divorce, such as adultery, physical abuse, or habitual drunkenness. If his name is on the deed or lease for the house  and if you fail to timely file, you will also have no legal basis to prevent your husband from moving back into the house.

It’s About The Money

A. You just lost your high-paying job at Boeing.

You should probably file.

If you have lost your job involuntarily, you could be in a better financial position to file for a divorce or legal separation than if you were still employed. Your income will be one of the more important factors when your family law judge decides whether to award alimony, how to divide marital property, and the amount of child support to be paid and by whom. Your judge will find it difficult to require you to pay a large amount of alimony or child support if you have no income and cannot find a new job at the same salary. If you previously earned high income, cannot immediately find a comparable job, and your marriage is “dead,” you should – at a minimum – seek advice from a Mt. Pleasant divorce and alimony lawyer regarding your potential options.

B. Your husband just sold his Apple stock for more than $500,000 without telling you

You should probably file.

If your spouse unexpectedly liquidates a major asset for cash, regardless of whether the asset is an investment, a retirement account, or something else of great value, you should be concerned. By consulting with a Mt. Pleasant marital property division lawyer, you will get a better understanding of what your husband may be doing and how it could adversely affect you.

Filing quickly for a divorce or legal separation is the best way to protect your interest in the money that your husband received from the sale of the high value asset. If you wait to file, your husband may have time to hide or spend the money. You will also increase the likelihood that your divorce judge will ignore any misspent funds when dividing your marital assets. Your judge could easily conclude that you consented to your husband spending the money on himself instead of saving it for your children’s education or using it to pay off family bills.

C. Your wife has closed your joint accounts and put the money and investments solely in her name.

There is no reason to wait. You should file immediately for a legal separation or divorce.

Your wife has sent you a clear message – she wants out of your marriage. She’s probably hired a divorce lawyer and is preparing a “surprise” divorce filing. She may be trying to force you into am unfair divorce settlement.

You need the help of a Mt. Pleasant divorce and family law attorney to protect you. You need a family law court order to: (1) freeze her accounts; (2) require her to report what she did with the money; and (3) return your share of the money and investments that she took from your joint accounts. You can get that court order only if you file for a divorce or legal separation.


You are facing a life-changing decision.

There is no simple test for knowing whether now is the right time for you to file for a divorce or legal separation. No one else has faced the same situation in which you find yourself today.

You must weigh carefully the possibility of saving your marriage against the potential damage of waiting too long to file. Although you have invested years of your life in trying to make your marriage work, it is possible that nothing can save your marriage. By continuing to wait, you may only be postponing and compounding the inevitable financial and emotional problems for you and your children.

While the foregoing illustrations may give you some general guidance, you should not make any decision about filing for a divorce or legal separation until you have spoken with a Mount Pleasant divorce and child custody attorney. You need to know your legal options and risks.

For more than 30 years, I have helped men and women like you make the decision to file. I am ready to help you in a similar way today.

Let’s get started. Please call me now at 843-631-7117 to discuss your situation. Or, if you feel more comfortable, you can use my contact form to request more information.

I am pleased to represent clients throughout the Low Country – including those who live in Charleston, Daniel Island, Folly Beach, Goose Creek, Isle of Palms, James Island, Johns Island, Moncks Corner, Mount Pleasant, North Charleston, Sullivan’s Island, and Summerville.

Working together, we can build a better life for you and your children.

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