Skip to main content

Things a Judge Can't Do, but You Can! - Part 3: Survived Agreements

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than letting a Judge decide your fate.

Part 3: Survived Agreements:  Do you want to decide now that certain issues can never return to court?

The issue of survived v. merged agreements can often be a confusing one, but it is actually relatively simple:  Merged agreements can be changed in the future by a Court, and survived agreements can NOT be changed in the future by a Court.

Recently, the Appeals Court confirmed the nature of survived agreements in Lalchandani v. Roddy.  The issue in Lalchandani was whether a husband who had reached federal retirement age can seek to terminate his alimony obligation, despite a survival clause prohibiting modification in a divorce agreement. Since, the Alimony Reform Act is quite clear that surviving alimony provisions cannot be modified under the Act, the only real issue in the case was whether the survival clause in the judgment was ambiguous. Unsurprisingly, the Appeals Court found that the "total disability" clause in the modification agreement was clear and enforceable, and denied the husband's request to terminate alimony on the sole basis of his age.

While in this case, the husband was likely disappointed by his inability to modify the survived agreement, this is the agreement he bargained for.  A trial court cannot create a survived order without the Agreement of the parties and if you take an issue all the way to trial, it is possible that it still might be modifiable in the future.  While in many instances it may not be advisable to survive certain provisions, having the option can often be a useful tool in preventing future court battles.

Next up: Parent Coordinator:  Do you want help resolving parenting disputes without returning to court?

Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an