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Monday, October 11, 2010

What is the difference between Merger and Survival?

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement with an attorney could save you much more in the long run.

So.... What is the difference between Merger and Survival?

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification 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.

If a portion of the Separation Agreement survives then this means that said portion does not combine 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 open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances.

If you are not sure whether your Agreement protects you when it comes to the merger/survival clause then you should meet with an Attorney to discuss this. To meet with Kelsey & Trask, P.C. you can call us at (508) 655-5980 or e-mail us.

2 comments:

  1. I guess based on the information above that alimony cannot be modified when both parties signed the survived agreement, is that right?

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    Replies
    1. That's correct if the alimony issue clearly survives in the agreement. Sometimes agreements survive but exclude certain issues which merge. This is true in most alimony agreements but in rare circumstances parties do agree to survive alimony, and in those cases it is almost impossible to modify such an order.

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