Merger and Survival of Divorce Agreements

When parties to a Massachusetts divorce settle their differences and come to an agreement, they enter into a written settlement document, commonly known as a Separation Agreement.  The Separation Agreement must then be presented to and approved by a judge in the Probate and Family Court. The judge will review the agreement and the parties’ financial statements to determine if the Separation Agreement is fair and reasonable, not the product of coercion or duress, and ensure that it makes adequate provisions for the care, custody, and support of any unemancipated children. If the judge approves the Separation Agreement, it is then incorporated into the Judgment of Divorce.  Beyond incorporation, the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract.  The parties also have the option to request that certain provisions of the agreement merge while other provisions survive.  All too often, I see unrepresented parties stare in bewilderment when asked by a judge if they intend for their Separation Agreement to merge or survive.

Provisions of an agreement that merge into a Judgment of Divorce are subject to modification upon a showing of a substantial and material change in circumstances.  Merged provisions can be enforced only through the filing of a Complaint for Contempt in the Probate and Family Court.

Provisions of an agreement that survive a Judgment of Divorce retain independent significance as a contract between the parties.  These provisions can be enforced like any other contract, including through a breach of contract claim or action for specific enforcement in the Superior Court.  Where the agreement is incorporated into the Judgment of Divorce and survives, the parties retain the right to also seek enforcement through the filing of a Complaint for Contempt in the Probate and Family Court.  Surviving provisions are not subject to modification except under the most extreme of circumstances, requiring a showing of “countervailing equities.”

Determining whether particular provisions of the Separation Agreement should merge or survive is a critical part of the negotiation process and not a decision to be made while standing in front of the judge.  Parties who enter into a Separation Agreement without understanding the meaning and significance of “merger” and “survival” may find themselves in difficult situations in the future when facing changed circumstances.  Get advice from an experienced divorce attorney about all of the terms of your divorce agreement, even the boilerplate.