Understanding Terms the Merge v. Survive in Your Separation Agreement

By: Christina Pashou, Esq.

In Massachusetts there is a waiting period after a Judgment of Divorce Nisi is issued and before the divorce becomes final. This is called the Nisi period. If you file a completely uncontested divorce with no litigation, your divorce will be final 120 days after the Judgement of Divorce Nisi is issued. All other divorces will become final 90 days after the entry of the Judgment of Divorce Nisi. When you and your spouse are able to come to an agreement on all matters pertaining to your divorce, you will enter into a contract, known as a Separation Agreement, which is incorporated into the Judgment of Divorce.

Terms within your Separation Agreement either “merge” or “survive” a Judgment of Divorce. An extremely technical aspect of Separation Agreements in Massachusetts is this classification, which determines whether the terms within the Agreement will “merge” or “survive”.  How a term is classified can dramatically change the long-term effects of your Divorce Judgment.  This classification dictates whether you or your spouse can return to court after the divorce is finalized and ask the court to modify certain merged issues decided in your final divorce. It is important to note that division of assets and debt is final and cannot be changed, whether the terms for division survive or merge.  It is also important to understand that most issues regarding children must be merged by law.  In other words, child-related issues must be merged and could be modifiable in the future.  For clarification, the difference between “merged” and “survived” terms are as follows:

• Merged Terms: When terms of a separation agreement are merged into a Judgment of Divorce, the terms are incorporated into the judgment and could be modifiable by the court. The court always has the power, in the appropriate situation, to revise or modify its own Divorce Judgment, if the divorce is the result of a trial, rather than by agreement.

Massachusetts law requires child related terms, such as, child custody, and child support remain modifiable by the court because as the needs of a child change, it may be necessary for these child-related issues to be adjusted.

• Survived Terms: When terms of a separation agreement “survive” a Judgment of Divorce, these terms stand as a binding contract between the parties. Like any contract, surviving terms can be enforced in a civil proceeding in Superior Court, or the Probate Court can enforce the terms through its Contempt powers, if there is a clear an unequivocal violation of the agreement. By this definition, a contract/survived term cannot be modified against the wishes of either party, because the spirit of contract law is that a contract is a voluntary agreement.  Therefore, the terms that survive in a divorce agreement cannot be modified unless both parties agree to the change.

In summary, the key distinction between merged terms and survived terms is whether you can modify a term within your Separation Agreement in the future.  Merged terms are modifiable after proving there has been a material change in circumstances.  Survived terms can only be modified by agreement of both parties, or the court may make a change in extraordinary situations, if at all. However, the court authority to modify a survived term is highly unusual and very unlikely in most cases.  Therefore, it is imperative that you understand which terms are modifiable and which terms cannot be modified before you sign your divorce agreement.

To speak with a lawyer about divorce or other family law matter, contact Mavrides Law in Boston, Newton, or Quincy, MA. To schedule an initial consultation, call 617-723-9900 or contact the firm at [email protected]