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Merger vs. Survival of Separation Agreements in Massachusetts

Separation Agreements (also known as Divorce Agreements) are used by Parties to settle cases at any stage of litigation. These Agreements have no greater or lesser power than a Judgment of the Court entered after a full Trial.

The terms of Separation or Divorce Agreements in Massachusetts are incorporated into any Judgment of Divorce. Additionally, the terms of a Separation Agreement can either "merge" into or "survive" the Judgment of Divorce.

If a Separation Agreement is "merged" into a Judgment of Divorce, its terms are incorporated into the judgment and are modifiable by the court, because the court retains the power, in proper situations, to modify or amend its earlier Judgment(s), typically via a Complaint for Modification. It is easy to remember "Merge equals Modify".

A merged Separation Agreement has no independent legal significance. It is simply a substitute for a Judgment of the Court that is entered by agreement.

If a Separation Agreement "survives" a Judgment of Divorce, its terms are also incorporated into the Judgment of Divorce and have "independent legal significance". It is a contract that can be enforced in a civil proceeding in Superior Court or in the Probate and Family Court. If enforcement is sought in the Probate and Family Court, where it was incorporated into the Judgment of Divorce, the violation of the Agreement is enforceable under the contempt power of the Court.

Surprisingly, a "survived" Agreement can be modified in limited circumstances. To modify a surviving Agreement, something more than a "material change of circumstances" (the standard for merged agreements, except for child support) must be shown before a Probate and Family Court judge may refuse specific performance of the Separation Agreement. The Probate and Family court can modify a judgment containing a surviving agreement if there are "countervailing equities" such as where a spouse is in danger of becoming a public charge. Knox v. Remick, 371 Mass. 433 (1976); Stansel v. Stansel, 385 Mass. 510 (1982); DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. 231 (1987).

A Separation Agreement can survive as an independent contract as to some portions of the Agreement, and merge as to others. Gottsegen v. Gottsegen, 397 Mass. 617, 619.  For example, an Agreement can survive as to division of assets and liabilities, but merge as to alimony and child related issues.

One important point to remember is that all child-related matters always merge into the Agreement, including, but not limited to, custody, parenting time, child support, contribution to college/school expenses, medical insurance for the child and the like. Even if the parties' Separation Agreement was intended to survive the Judgment of Divorce, a modification seeking a change in the child support provision can be modified by the court, as child-related issues are always modifiable. Ryan v. Ryan, 371 Mass. 430 (1976).

Where a Separation Agreement and a Judgment of Divorce are inconsistent as to whether or not the agreement survives or merges, the intent of parties controls. Moore v. Moore, 389 Mass. 21 (1983). In Moore, the issue was whether the language in the divorce decree dissolved the agreement or whether the parties' separation agreement stated that it shall survive the divorce decree controlled. The Court held that as stated in the parties' Separation Agreement, it was their intent that their Separation Agreement survive as an independent contract from the divorce decree.

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