The Important Difference Between a Merging and Surviving Separation Agreement

It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce. As time goes on, circumstances will most certainly change for the former spouses. However, not all Separation Agreements are modifiable. Before a spouse files a modification action, it is important to ascertain whether the separation agreement, or the relevant portions of the agreement, can be modified.

In Massachusetts, Separation Agreements either “merge” or survive”. When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances. When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances. The courts have stated that there must be “countervailing equities” to modify a surviving agreement. Although the term “countervailing equities” has not exactly been defined by the court, it has generally meant the most extraordinary circumstance will permit a modification, such as a person becoming a ward of the state absent a modification.

It is also possible for part of a separation agreement to merge, and other parts to survive. Almost always, provisions regarding division of marital property and marital debt, survive, so those provisions can only be modified in the rarest of circumstances. Provisions regarding children, such as custody, the parenting plan, child support, and payment of college costs, almost always merge, and can be modified. Other provisions, such as life insurance and alimony, can survive or merge, depending on a case-by-case basis.

However, since the Alimony Reform Act went into effect in 2012, former spouses and attorneys alike have questioned if a separation agreement that survives, or a separation agreement in which the alimony provisions survive, can be modified in light of the Alimony Reform Act. Most attorneys have agreed that the answer is no, alimony cannot be modified if the agreement, or that provision, survived.

On August 22, 2014, there was a definitive answer to this question from the Appeals Court in the case of Becker v. Phelps, where the Appeals Court made it clear that the Alimony Reform Act does not change the status of the law when it comes to surviving separation agreements. In fact, the Appeals Court interprets the Alimony Reform Act of affirming the long line of case law stating that a surviving agreement can only be modified in the rarest of circumstances.

Thus, the status of separation agreements has not changed under the Alimony Reform Act. A surviving separation agreement, or a portion of a separation agreement relating to alimony which survives, remains modifiable only in the case of “countervailing equities.” This just re-affirms the importance of understanding the difference between a surviving agreement and a merged agreement, and which applies in your case.

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