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Is a Separation Agreement MERGED into a Judgment of Divorce (no part surviving the Divorce) an actual Court Order?

Lowell, MA |

The Appellate Courts sometimes differentiate between things Ordered by Judges and Agreements of parents in the scope of their opinions. From my reading of some basic procedure, it appears that there is no difference between a Merged Agreement with no surviving stipulations and a Decision or Order of the Court. Is this correct? It will be important to me in the next few months. Thank you.

Thank you very much for putting so much thought into your answers - they even answer some questions I hadn't thought to ask! This deals with a higher mass Court Opinion due within the next few months that may limit its scope to "Court Orders". I will find the right attorney if it impacts my case.

Attorney Answers 3


  1. Best answer

    The agreement gets adopted by the court as the order. Most of the agreement is not subject to change later. Those parts that are subject change, providing a material change in circumstance, have to do with the children. Most changes in the rest of the agreement are limited to those which clarify ambiguity or deal with impossibility or additional/new agreement (Joint Complaint for Modification, for example).

    No answer provided by this attorney in this forum is to be considered legal advice. No attorney-client relationship is created in responding to this question, and advice provided is based solely on very limited facts presented, and therefore may not be correct. You are advised that it is always best to contact a competent and experienced with the practice of law in the county in which you reside.


  2. The short answer is that a merged agreement is absorbed into the judgment of divorce, rather than an independent contract with terms that cannot be modified unless there is an agreement between the parties or a judicial decision that is met by a very high standard (countervailing equities) in order to support the change. In general, whether survived or merged, the division of assets and debt (alimony if survived) is final at the time of divorce and generally cannot be modified. Extenuating circumstances, such as fraud, intentional misrepresentation can be the basis for an argument to change an asset/debt division. As you can imagine, this is a very complicated area of legal interpretation and the facts of each case drives how a court may rule. If you are representing yourself, it would be in your best interest to communicate with an experienced family lawyer to review the issues in your matter in conjunction with the judge assigned to your case in order to assist you in drafting persuasive documents and preparation of oral argument. If you want to modify a term or terms that generally may not be modifiable, such as a post-division of an asset or debt, a review of the specific language regarding the issue, as well as the preamble (aka "boilerplate" ) language must be analyzed, as you most likely have the burden of proving a change is warranted. The Probate and Family Courts are not only courts that deal with divorce issues, they are also courts of equity. So if your matter does not fall within the scope of usual modifications, you may have an argument that equity/justice suggests the change you request is appropriate. Of course, any issues regarding support and child-related issues can be modified by a complaint for modification- with any change in child support at a lower standard of proof and other support and child related issues needing proof of substantial and material change in circumstance from the date of the judgment to the date of the request. Good luck.

    DISCLAIMER: The information contained herein, and the receipt or transmission of same does not constitute or create an attorney-client relationship and the information provided does not constitute full analysis of any specific matter.


  3. Generally if a Separation Agreement is merged or incorporated into a divorce order, the courts will treat the agreement as a court order. At times, the separation agreement will reflect an agreement to either merge/incorporate or not. Depending on the wording and the court's interpretation, it is likely that a court will treat the provisions of the separation agreement as if the provisions were actually ordered by a judge. The big difference is that a Separation Agreement on its own is enforceable like any other contract and an incorporated Separation Agreement into a divorce order is enforceable by powers of the court. I would recommend that you contact a family law attorney to better analyze your situation as well as explain the specific implications that could result in your matter should it have to be addressed by a court. Good luck!

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