Merger vs. Survival

Prior to signing your divorce agreement, you must understand this legal distinction.

The terms set forth in every divorce agreement (or separation agreement) either “merge” or “survive” a Judgment of Divorce. This legal distinction will determine whether certain portions of your agreement (e.g. alimony, life insurance, and health insurance) may be modified or changed in the future. The language used will ultimately determine whether the agreement in front of you is fair and reasonable.

Unfortunately, individuals who represent themselves in divorce proceedings often do not completely understand the effect this language may have years down the road. I have witnessed on several occasions, a judge explaining this distinction to pro se (unrepresented) parties minutes before they are enter into a binding agreement.

This is one reason it is imperative to have an attorney review your agreement and thoroughly explain the ramifications. If you spend now, it will save you later!!

What does the term “Merger” mean?

When a portion of the separation agreement merges then that portion of the agreement is incorporated into the Judgment of Divorce and remains modifiable by the court,  if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the agreement.

Short answer:  This portion may be modified in the future!

What does the term “Survival” mean?

If a term of the Separation Agreement survives then this means that said term is not incorporated with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is not modifiable.

Short answer: This portion may not be modified in the future!

It is important to note that a “survived” agreement does not prevent modification of most child-related issues. Even if the parties’ separation agreement was intended to survive the judgment of divorce, a modification seeking a change in most child-related provisions may be modified by the court. In the alternative and absent fraud, property division cannot be modified by the court.

For further information regarding merger and survival and its impact on your divorce agreements, please do not hesitate to contact my office at (978) 388-1787.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and e-mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.


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Filed under Custody, Divorce

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