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 … Keep reading