Experienced family lawyers guide spouses in emotionally fraught divorce proceedings toward a resolution that terminates the marriage. A separation agreement is a crucial part of that process. A separation agreement memorializes the terms of the resolution and also clearly articulates the parties’ mutual rights and obligations. The separation agreement may either be incorporated or “merged” into the judgment of divorce granted by the Probate Court or may “survive” as an independent contract. It is crucial that the parties understand the difference between merger and survival; the separation agreement the parties submit to the probate judge they should have carefully written to reflect their goals.


Regarding a merger: A separation agreement whose terms, by stipulation, merge into the judgment of divorce entered by the Probate Court lacks independent significance. Such an agreement is subject to a party’s motion for modification of support. It is also subject to an order of contempt for noncompliance from the probate judge. Because the Probate Court can revise its own judgment in this case, modification and contempt are possible.

Standing alone:

Let’s contrast a separation agreement whose terms explicitly articulate the parties’ intent that the provisions merge into the judgment of divorce but that the agreement stand alone as a contract with independent legal significance. In this case, modification and contempt are not as readily reached by the Court. In fact, a party seeking to modify a surviving separation agreement must demonstrate “something more” than a material change of circumstances warranting a revision. Enforcement of a surviving agreement can occur either in Probate Court or in a civil proceeding in Superior Court; this is just like any other breach of contract action.

Fair and reasonable:

For the separation agreement to survive a judgment of divorce, the Probate Court must find it is fair and reasonable; that it is not fraudulent or the product of coercion; and that the parties agreed on its finality. If that bar is met, the parties’ provisions for dividing the marital property will not be subject to further division by the Probate Court, absent “countervailing equities.” An example of that, allowing for judicial revision, would be one of the former spouses being in danger of becoming a public charge.


A separation agreement may have just some of its terms survive the judgment of divorce; the other aspects merge into the judgment. What if the separation agreement is vague regarding the question of its survival? Generally, the court holds such agreements to survive the subsequent divorce judgment that incorporate its terms. Examining the terms of the agreement in its entirety, the parties’ intent is the decisive factor, not the court’s predilection. Inartful drafting of the agreement that contains the word “merged” does not in of itself mean the parties wanted the judgment of divorce to absorb the agreement. The parties may express or imply contrary indications of intent elsewhere in the agreement; this likely means they meant for the agreement to survive.

Child-related matters:

Child-related matters, such as visitation, custody and child support, remain subject to modification and contempt orders by the Probate Court, as the former spouses cannot bargain away their children’s right to support from either of the parents.

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