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Merger vs. Survival of Divorce Agreements in Massachusetts

By Howard Goldstein, Esquire

Separation Agreements either "merge" or "survive" a Judgment of Divorce. When a separation agreement is merged into a Judgment of Divorce, its terms are incorporated into the judgment and are modifiable by the 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, which is entered by stipulation and has no greater or lesser power than a judgment of the court entered after trial.

If a separation agreement 'survives' a Judgment of Divorce, its terms are also incorporated in the Judgment of divorce, 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 proceeding in Superior Court, or enforcement can be had in Probate Court, where, because it has also been incorporated in the judgment of divorce, the violation of the agreement is enforceable under the contempt power of the Court. By this definition, it would seem impossible for a court to modify a contract with independent significance, against the wishes of either party, because the essence of contract law is that it is a voluntary agreement.

When Can a "survived" Agreement be modified?

Our courts have held that a judgment incorporating a surviving agreement CAN be modified, but something more than a "material change of circumstances" (the standard for merged agreements) must be shown before a probate judge may refuse specific performance of the separation agreement. A probate court can modify a judgment containing a surviving agreement if there are "countervailing equities" such as where a spouse is in danger of becoming a public charge. Knox v. Remick, 371 Mass. 433 (1976); Stansel v. Stansel, 385 Mass. 510 (1982); DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987).

In Stansel, the parties were granted a 1A divorce on December 15, 1978. The marital property was divided and the husband was to pay the wife alimony for (two) 2 years. The Agreement also stated "it was intended to survive the entry of any divorce decree and to be binding on the parties thereafter." Stansel v. Stansel, 385 Mass. 510, 511 (1982). On January 31, 1980, the wife filed a modification seeking to extend her alimony payments, and the husband claimed that the terms of the agreement were a bar to the modification. The probate court found a change in circumstance and ordered the husband to pay the wife three (3) more years of support, increased the support order, provide health/dental until the wife remarried and to pay the wife's attorney's fees. The SJC reversed the modification judgment and reinstated the parties' separation agreement because there were no findings made by the probate judge that the wife would become a public charge or any other existing countervailing equities. Stansel v. Stansel, 385 Mass. 510, 516 (1982).

See also, Broome v. Broome, 43 Mass.App.Ct. 539 (1997). Where 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 separation agreement were specifically enforced. There was insufficient evidence of other countervailing equities to warrant the judge's order that the former husband continue to pay support. It is not clear from the court's opinion what other countervailing equities there might be that would justify a court in refusing to enforce a separation agreement that survived the divorce judgment.

In Knox v. Remick 371 Mass 433(1976) the court in dicta, indicates that one such situation might be where the party relying on the term of the contract has not, in other respects, fully complied with the agreement.(at page 437) but our case law is otherwise silent on what other countervailing equities might be.

A "survived" agreement does not prevent modification of child support

Even if the parties' separation agreement was intended to survive the judgment of divorce, a modification seeking a change in the child support provision can be modified by the court. Ryan v. Ryan, 371 Mass. 430 (1976). In Ryan, the husband filed an action in superior court seeking specific performance of the separation agreement. The superior court ruled in the wife's favor, modified the child support order and the husband's complaint was dismissed. The SJC affirmed the lower court's ruling. Id. Although the parties' separation agreement survived the Judgment of Divorce, "the power of the probate courts to modify its support orders may not be restricted by an agreement between a husband and wife which purports to fix for all time the amount of the husband's support obligation." Id. Furthermore, child support orders are different because "[p]parents may not bargain away the rights of their children to support from either one of them." Knox v. Remick, 371 Mass. 433, 437 (1976); DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987). See also MGL Ch. 208 Section 28.

Property Division can not be modified: i.e. these provisions always survive

Absent fraud, there is no basis for further division of property once it has been divided by agreement, pursuant to 208 section 34. see Kirtz v. Kirtz 12 Mass. App. Ct. 141, citing, Maze v. Mihalovich, 7 Mass. App. Ct. 323, Belsky v. Belsky 9 Mass. App. Ct. 852 and others.

Additional Relevant Case Law

A probate judge does not have authority to prevent the survival of an agreement when there are no findings that "the agreement was illegal, unfair, unreasonable, entered into through fraud or coercion." Id. The parties' intent is determined by the terms of the entire agreement. Further, it is the Commonwealth's "established public policy" that the parties' separation agreement shall survive a divorce decree, unless their agreement expressly states otherwise. Here, in this case, based on the parties' agreement, it was their intention that it survive the divorce decree as an independent judgment. DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987).

When the separation agreement and the divorce decree are inconsistent as to whether or not the agreement survives, the parties' intent controls. Moore v. Moore, 389 Mass. 21 (1983). In Moore, the issue was whether the language in the divorce decree dissolved the agreement or whether the parties' separation agreement stated that it shall survive the divorce decree controlled. Id. The Court held that as stated in the parties' separation agreement, it was their intent that their separation agreement survive as an independent contract from the divorce decree. The parties' separation agreement that survives the judgment of divorce cannot later be found unfair and unreasonable, and thus, unenforceable on a Complaint for Modification for increased alimony and child support. Randall v. Randall, 17 Mass.App.Ct. 24 (1983). In Randall, the parties had signed the agreement voluntarily; had been apprised of all relevant facts, and advised by independent counsel. The record lacks any evidence of fraud, coercion or that the provisions in the agreement are contrary to public policy. As such, "the probate judge erred in refusing specific enforcement of the separation agreement with respect to interspousal support and child support" without a finding that the parties' financial circumstances presented "countervailing equities." Id. at 32.

It should be noted that a separation agreement is a contract and a party may seek specific enforcement of its terms even though a probate judge has altered a party's contractual commitment. A probate judge may reduce an obligor's support payments, despite the terms of the agreement, to avoid contempt proceedings; however, the probate court does not have the authority to modify the agreement, and altering the obligor's contractual commitment as stated in the agreement. As such, even though the obligor's support obligation has been reduced, the obligee may then seek a contract action to recover the full amount owed under the parties' agreement.) Knox v. Remick, 371 Mass. 433 (1976); Hills v. Shearer, 355 Mass. 405, 408 (1969). Freeman v. Sieve, 323 Mass. 652, 656--657 (1949). Welch v. Chapman, 296 Mass. 487, 488 (1937);see Whitney v. Whitney, 316 Mass. 367, 370 (1944). A separation agreement can survive as an independent contract as to some aspects of the agreement, and merge as to others. Gottsegen v. Gottsegen 397 Mass. 617,619.

Howard Goldstein is trained mediator and a partner with the law firm of Rosenberg, Freeman & Goldstein. He has been providing representation in family law and divorce since 1973 and is on the Board of Directors of the Massachusetts Council on Family Mediation and Board of Directors of the Massachusetts Collaborative Law Council.

He can be contacted by phone at (617)964-7000 or
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