Merger Versus Survival of Divorce Agreements in Massachusetts
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Separation agreements (agreements that deal with divorce-related issues such as child custody and support, alimony and the division of property) either “merge” or “survive” a judgment of divorce. This article provides an overview of these terms.
What is a merged agreement?
When a divorce agreement – also called a separation agreement - is “merged” into a judgment of divorce, its terms are incorporated into the judgment and may be modified (changed) later by a court, because the court always has the power, in the proper situation to revise or modify its own judgment. A “merged separation agreement” has no independent legal significance. It is simply a substitute for a judgment of the court that is entered by stipulation (agreement between the spouses) and has no greater or lesser power than a court judgment entered after trial.
What is a survived agreement?
If a separation agreement “survives” a judgment of divorce, its terms are also incorporated into the judgment, but because it does not “merge” into the judgment, the separation agreement stands as a contract with independent legal significance. Like any contract, it can be enforced in a civil court proceeding. It can also be enforced under a court’s contempt power; if one spouse violates the terms of the agreement, a court can hold that spouse in contempt and impose fines or even jail time for the disobedience.
When can these agreements be modified?
A judgment based on a merged agreement can be modified by a court if the spouse seeking modification can show a material change of circumstances since the time the agreement was entered.
A court can modify a judgment containing a surviving agreement if it finds that there are “countervailing equities,” such as where a spouse and/or the children are in financial duress and in danger of becoming public charges (going on welfare or other public benefits programs). A simple change of circumstances alone is not sufficient.
For example, in one Massachusetts case, the spouses were granted a divorce in 1978. Pursuant to their divorce agreement, their marital property was divided and the husband was to pay the wife alimony for two years. The underlying agreement also stated “it was intended to survive the entry of any divorce decree and to be binding on the parties thereafter.” See Stansel v. Stansel, 385 Mass. 510, 511 (1982).
In 1980, the wife asked the court to modify the judgment and extend her alimony payments. The husband claimed that the terms of the agreement prohibited modification. The lower court found that there was a change in circumstance and ordered the husband to pay the wife support for three more years. The court also increased the support order and ordered the husband to cover wife’s health/dental insurance until she remarried. The husband appealed the decision and the higher court reversed the modification judgment and reinstated the parties’ original separation agreement, because there was no evidence that the wife would become a public charge without a modification, or any other existing countervailing equities.
In the case of Broome v. Broome, 43 Mass.App.Ct. 539 (1997), the court held there was insufficient evidence to support the judge's finding that the former wife was destitute and would become a public charge if the original separation agreement were enforced. There was no evidence of other countervailing equities to warrant the judge's order that the former husband continue to pay support.
Child support is always modifiable
Even if a couple states that their separation agreement survives a judgment of divorce, a child support provision can always be modified by a court. Even though separation agreements survive a judgment of divorce, a court’s authority to modify its child support orders may never be restricted by an agreement between parents. Parents cannot fix a child support amount for all time. Child support orders are different from any other divorce-related orders, because children have a legal right to child support and the obligation is to the child, not the parent. Parents may not bargain away their children’s rights to support.
Courts cannot modify provisions regarding property division
Absent fraud, there is no basis for further division of property once it has been divided by agreement.
Knox v. Remick, 371 Mass. 433 (1976)
Stansel v. Stansel, 385 Mass. 510 (1982)
DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987)
Knox v. Remick, 371 Mass. 433, 437 (1976)