The vast majority of marriages are barely breathing, even on life support, by the time one of the spouses calls an attorney. This explains why nearly all family law practitioners immediately proceed to explain the process of divorce (dissolution of the marriage in Kentucky) and begin taking down information needed to prepare the petition. There is rarely discussion of what alternative there are to divorce because the remedial steps of counseling or trial separations are notoriously ineffective.
On the cynical side, some lawyers recognize that they can earn far more from divorce proceedings then from trying to counsel their clients in ways to repair their marriage. Furthermore, a person who has decided to call a lawyer is most likely determined to see a divorce through and would just find a different lawyer. So, I can’t blame an attorney for taking this approach.
Despite all this, I believe there is a place for using a legal separation in place of a divorce. Nearly all other attorneys percieve, with good reason, a legal separation as an expensive precursor to divorce. In that view, it is wasted time and effort to work out a legal separation. However, there are those couples that would opt for a legal separation, usually for religious reasons, if it were explained to them.
In Kentucky, there is very little difference between a legal separation and a dissolution of marriage. The property is divided up and any income or other assets obtained after the legal separation is entered are no longer presumed to be marital property. Child custody and visitation orders can be decided and entered with the same binding force as in a divorce. The spouses can go their separate ways or take time to see if there is anything to salvage with the marriage.
There are really only two significant differences. First, if you are legally separated you cannot marry someone else. This is no real barrier for those with a strong religious conviction against divorce since they would likely view remarriage after divorce forbidden except under specific circumstances. The other difference is that, under Kentucky law (KRS 403.230) either spouse can convert a legal separation into a divorce after one year of the entry of the decree.
The latter difference prevents the legal separation route greatly more expensive than a divorce. All the arrangements of the legal separation would carry forward and would not have to be re-negotiated. Actually, in cases where at least one party is against divorce, a legal separation may be less expensive even if it ultimately is converted into a divorce. The pressure and emotions accompanying divorces that fuel so many bad decisions and unnecessary hostility could be diffused with a legal separation.
There are marriages on the brink of death that can be resuscitated given enough time, help, and room to heal and legal separations should be explained to those seeking divorce as an alternative.