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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?

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