The provisions of Massachusetts Separation Agreements either “merge” or “survive” a Judgment of Divorce. When an Agreement is “merged” into the Judgment, the terms of the agreement become incorporated into the Judgment and are modifiable by the Probate & Family Court, because the court always has the power, when appropriate, to revise or modify its own Judgment.

A “merged” Separation Agreement has no independent power or legal significance, it is merely adopted by the court as the court’s Judgment that has entered by stipulation. The merged portions of a judgment have no greater or lesser power than an actual judgment of the court entered after trial.

Basically, a stipulation is an agreement which is contemplated and drafted by the parties, where a judgment is a determination made by the court following a trial on the merits. Merged provisions within an agreement are modifiable by the Probate & Family Court when a material change in circumstances occurs which warrants a modification.

It is important to note that many Massachusetts Separation Agreements include both merging and surviving provisions. For example, the final division of assets is typically surviving, and therefore cannot be modified after the Agreement is entered.

In contrast, provisions affecting child custody and child support typically merge, meaning these provisions can be modified if a party demonstrates a substantial change in circumstances has occurred after the agreement is entered.

If a provision within a Separation Agreement “survives” a Judgment of Divorce, the provision is said to be incorporated into the Judgment, but not merged with the Judgment, meaning the agreement also stands as a separate contract with independent legal significance. Contracts are enforceable in civil suits, and thus a surviving Separation Agreement, in whole or in part, can be enforced in Superior Court – as well as the Probate & Family Court – a contract. More importantly, unlike a merged judgment, a surviving “contract” cannot be modified.