Merger, Survival, And Incorporation – Oh My!

July 13, 2022 O'Connor Family Law Divorce

Despite being words people are familiar with, most people have no clue what they mean in relation to their divorce agreement. These technical words that do not seem like a big deal cause many people overlook them in their divorce proceedings or nod when the Judge asks if they understand without actually understanding, and then, to their horror, only realize how significant they are when it’s already too late.

Knowing the real application of legal terms is like being armed well in advance in divorce negotiations. The more you know and understand, the better. Depending upon how different issues within your agreement are labeled, you may find it practically impossible to change something later on down the road. Even if your individual circumstances change, you may find yourself locked into what you agreed to years ago, even if it no longer seems like a fair deal!

If you put yourself and your children into an unfavorable position because of carelessness or being sweet-talked into false premises, you’re out of luck – not even the judge or any amount of lawsuits can help you after you’ve signed.


The main difference between these two is that the Divorce Decree, or Judgement of Divorce, ends the marriage itself, while the Separation Agreement is a separate document that must be signed by both parties which details how the end of their marriage will be handled.

The Separation Agreement is usually drafted by the attorneys of both divorcing parties after or during the negotiation process. This document lays out the rights and responsibilities of the divorced spouses after the end of their marriage – the custody arrangements for their children, parental rights and authority, visitation rights, and child support, the division of assets, alimony, what happens to family assets like the home and shared financial accounts, and even the division of debts and pensions.

The Divorce Decree contains rulings by the judge that allows for a Nisi Judgment followed by an Absolute Judgment to enter. Even when the two people who want a divorce agree on all of the terms within the Separation Agreement and file an uncontested divorce, it is still up to the Judge to accept and approve the Separation Agreement and render the Judgment of Divorce.


If you are going to resolve your divorce on any or all settled terms, then yes, you will need a Separation Agreement. If you’re filing an uncontested divorce, then you need a Separation Agreement before you can even file. If you file a contested divorce, then the Separation Agreement can be filed six months after the date of service if you have reached agreements at that time or any time after that. Even if your case is put down for trial and you are able to agree on some of the issues, you can enter into a Partial Agreement. Unfortunately, if you can’t agree on anything, you cannot file a Separation Agreement and the Judge will decide your fate at trial.

Many times, one party will send the other a “Separation Agreement Proposal.” This means they are trying to settle the issues in the case. If you are offered a Separation Agreement that looks unfair and insulting, you don’t have to sign it. You can reject it in its entirety or you have the right to counter back and propose different terms.

Even if you are presented a Separation Agreement that you agree to in its entirety and you both sign it – that is NOT enough to actually get you divorced. You could have the best Separation Agreement in the world, but it doesn’t mean anything until it has been submitted to the Family Court and reviewed and approved by a Judge. How do you know when that happens? You will have to appear in court and the Judge will issue the Nesi Divorce Judgment. Thirty days after the Nesi Judgment enters, then the Absolute Judgment will enter. You are not legally divorced until the Absolute Judgment enters. DO NOT GET MARRIED BEFORE THEN!


Incorporation means ‘to make part of’, which shares a similar root to the word ‘corporation’ – ‘composed of many things’. When a Judge incorporates the Separation Agreement into the Judgment of Divorce, that is the magic that makes the Separation Agreement an actual legal document. Without it, the Separation Agreement is not legally binding.


Terms that are merged within a Divorce Judgment mean that those specific merged issues can be modified later on if the burden to seek such modification are met. You will always merge issues surrounding children because there is so much that can happen in the future, the Court reserves the right to make changes if necessary. Other issues, like alimony, health insurance, life insurance, certain financial agreements – they may be merged or they may survive. This is why it’s important to know the difference.


Terms that survive the incorporation into the Divorce Judgment are treated as independent and fixed contract. That means that, except in very rare circumstances, the surviving terms cannot ever be challenged or modified in any way. They become binding contracts enforced by civil courts. Usually any type of property division is listed as a surviving issue. This is so, ten years down the road, neither side can come back in and try to get more than what they bargained for at the time of the divorce. If those issues we discussed earlier – issues like alimony, health insurance, life insurance, and let’s say things like paying car insurance for the other person or another bill – if those are listed as surviving the Judgment of Divorce, that means you can never ask to change them in the future, regardless of whether your circumstances have changed and you desperately need the modification.


Some terms are actually better off merged into the judgment than surviving the agreement. The Court will expect any issues relating to your children to merge. If child-related issues are not subject to merger, the Court will likely deny your Separation Agreement (unless they do not actually look through it as they are supposed to).

Generally, property divisions are expected to survive so people can’t disrupt each other’s lives later and try to relitigate those issues. Too often, we’ve seen one party buy the other out of the house, then the property value either increases or decreases significantly. A surviving agreement on that issue means that the person who is negatively effected by the increase or decrease after the fact does not get a second bite at the apple. If the home’s value increased by $200,000 a year after the divorce, the person who was bought out does not get to go back in to get more money. Likewise, if a home’s value decreased by $200,000 and the spouse who bought the other out of the home now has to sell at a loss, they cannot go back seeking for the other spouse to be responsible for the loss in value. If you try to merge a property division, the Judge will likely deny your divorce.

Provisions surrounding alimony is one area where how you label it is so important. Sometimes neither spouse needs alimony at the time of the divorce, so they waive it. If that waiver merges, then you can go back and seek to get alimony if you need it later. However, if that waiver survived, you cannot seek support in the future for absolutely any reason – even if you find yourself destitute and living on the streets.

You should be absolutely sure of any terms you approve to survive the Divorce Judgment and understand what those mean 10-20 years down the road, because those terms will stand for the rest of your life.

Negotiations often focus around whether certain issues merge or survive. One spouse may really want a surviving alimony waiver. That issue may be negotiated by the spouse agreeing to the waiver getting a greater portion of the division of assets.

The easiest way to remember the difference is:

‘M’ = Merged = Modifiable

‘S’ = Survive = Shit out of luck in the future if you want to change it


No. A child support order will never survive a Divorce Judgment. We have seen people who do not want to pay child support on a weekly basis enter into agreements where the person who would be getting paid the child support retains all of the equity in the home in exchange for a child support waiver. Some Judges will not even allow these types of negotiations. Even if a Judge does allow it to go through, doing so is incredibly risky. Even if labeled as “surviving,” issues relating to a child will ALWAYS be modifiable. The Court will not prohibit someone from seeking child support later solely because they took all of the equity in the home. However, if the property division survived, then that part will be considered final. See how that could potentially result in a very unfair result? One person could get the home, but then, as soon as the divorce is over, file a modification for child support and be able to receive it. That’s why it’s so important to know the ins and outs of how any decision can effect you later on down the road.


Divorces are never easy, and if your soon-to-be ex-spouse is doing his or her best to minimize what you get to claim from the marriage and put you in a disadvantageous position, it will not be any easier. Your children deserve to have a life not impacted by the trauma of divorce or the result of entering into an agreement you did not understand due to a legal technicality.

We can help you get through the divorce process in a manner that will educate you so that you do understand your rights – that you understand the pros and cons of each decision you make, whether that is how it affects you now or how it could affect you years down the road. Consult with our experienced Massachusetts divorce attorneys to make sure that the Separation Agreement helps you get the actual benefit of what you bargained for.