"Merged" Versus "Surviving" Provisions of a Separation Agreement

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The vast majority of divorce cases are resolved not by trial, but by the parties agreeing upon and submitting a Separation Agreement to the Probate and Family Court for approval.  One of the more confusing elements of a Separation Agreement for many clients is the fact that certain provisions of the agreement are deemed to "merge" with the Judgment of Divorce and other provisions are deemed to "survive."  Although these terms may be unfamiliar to non-attorneys, the distinction between the two is not particularly complex.  

 

Surviving provisions are those which "survive" the Judgment of Divorce, meaning they continue to exist as an independent contract between the parties; property division of the marital estate is the most common example of a surviving provision, although other elements of the agreement can survive as well so long as the parties agree to it. Any violation of a surviving provision can be enforced through a Complaint for Contempt filed with the Probate and Family Court or through a civil court proceeding for breach of contract. In contrast, merged provisions of a Separation Agreement do not maintain any independent legal significance beyond the Judgment of Divorce, and are treated simply as a Court order. This means that, if a party violates a merged provision of a Separation Agreement, the other party's only remedy is to file a Complaint for Contempt with the Probate and Family Court. Provisions involving children, such as custody and child support, are always merged.

 

The most important difference between surviving and merged provisions, from a practical perspective, is the ease with which the Probate and Family Court can modify them at a later date. Merged provisions, such as those related to custody, payment of children's expenses, or sometimes alimony (which can either merge or survive) can be modified by the Court at the request of a party so long as he or she can show that there has been a "material change in circumstances" since the Judgment of Divorce was entered.  Exactly what constitutes such a material change in circumstances can vary, but a Court will typically accept any significant change to a party's income or health in considering a modification of an existing financial order, such as alimony or child support.  If one party was seeking to modify the existing custodial arrangement, the Court would likely also accept the passage of time and the associated changes to the child(ren)'s development, or a major change to a party's or a child's living situation, as material changes in circumstances.  Notably, demonstrating a material change does not mean that the party seeking modification will actually obtain that relief from the Court; it simply means that he or she has provided adequate grounds for the Court to entertain a Complaint for Modification at all.

 

In contrast to merged provisions, surviving provisions of a Separation Agreement are not modifiable by the Probate and Family Court simply due to a material change in circumstances. Before a Court would modify a surviving provision, the party seeking the change would have to demonstrate that such a modification was necessary due to "countervailing equities," such as that spouse becoming a public charge if the original agreement were carried out as intended.  For property division, the bar is arguably even higher, as an ex-spouse would have to demonstrate that the original property division agreement was the result of fraudulent conduct by one or both parties before the Court would consider modifying the division of property reflected in the Separation Agreement.

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