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Merger vs. Survival Clauses

Information About Merger vs. Survival in Divorce Agreements

Portions of your Separation Agreement have the option of either surviving or merging into a Judgment of Divorce. This is an explanation of one of the most difficult and technical issues you will encounter in your divorce.

The General Rule

Your Separation Agreement must contain special language about the finality of its provisions. The terms which are applied to your Separation Agreements either "merge" or "survive as an independent contract." You must decide which term is applicable to each situation. The following is a general explanation of these terms:

If the portion of the Agreement "merges", it may be changed in the future if there is a substantial change in circumstances. It is enforceable only in the Probate and Family Court.

If the portion of the Agreement "survives as an independent contract," it is final and ordinarily not subject to change in the future. It is enforceable in the Probate and Family Court or in the Superior Court.

Issues Related to Children

Under Massachusetts law, the child care plan (legal custody, physical custody, visitation, etc.) and the child support provisions both remain modifiable in the future so that the court can remain responsive to children when circumstances change after you sign your Agreement. Therefore, the Separation Agreement must provide that all issues regarding children "merge" with the Judgment of Divorce.

Issues Relating to Property Division Are Final

Under Massachusetts law, the division of marital property is final and won't be re-opened by a judge over the objection of one party. That is, you may mutually agree to change the division of property after you sign your Agreement, but a judge won't change it if one of you disagrees. The only exception is in cases where fraud can be proven.

You Must Decide if Alimony Merges or Survives

The issue of the finality of your alimony provision is not pre-determined by Massachusetts law. You must decide whether the provisions you make about alimony are final or remain open to modification in the future.

If you decide the alimony term is final, the Separation Agreement must contain a clause that says that the alimony provision survives as an independent contract. That phrase means that it cannot be changed later. That is, if you give up ("waive") alimony, the decision is final. The only exception to that finality is if one of you is in desperate financial need and about to seek public assistance.

There are other options relating to the future alimony provisions. Some want alimony to merge only if specific catastrophes occur, if one spouse inherits a substantial amount of income, etc.

Our Winning Formula and Unique Strategy

Since our attorneys are assigned to a specific region and set of courthouses, we know how policies and procedures related to merger and survival language are handled in each courtroom, and you can count on the fact that we know how each judge tends to work.

Instead of being dependent on a single attorney, you get an entire team backed by our statewide network of carefully recruited family law attorneys working together to watch your back, stand-up to your spouse, and prevail in the courtroom. When you become a client, our entire team is available to you at a moment's notice – 7 days a week, 24 hours a day. Each of our attorneys is available on Blackberries and is available to answer your questions by phone or e-mail anytime - not just during office hours!

When you are involved in matters relating to merged or survival language, your chief concern is protecting yourself and your children. The aggressive and experienced family law attorneys at The Massachusetts Family Law Group do everything possible to achieve the best possible outcome the first time around, because appeals are rarely won. For a FREE, no-obligation consultation, call (800) 763-1030 or e-mail us.

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