Divorce Attorneys Roslindale

Every divorce requires an agreement.  Rather than being called a divorce agreement, which is what it is, the legal term for the agreement governing the rights of the parties in a divorce is called the Separation Agreement.  Often after the divorce is finalized, this same agreement is referred to as the "Marital Agreement."  In any event, we will be referring to this document as the Separation Agreement for purposes of this discussion.  The Separation Agreement spells out the details of the agreement that the parties have negotiated and agreed to.   It is an actual contract.  The terms of the Separation Agreement should not be left to a novice to draft because it is used to settle very important matters such as property rights, child custody, and child support.  It is comprehensive when drafted correctly.  It should include the parenting plan, educational and college tuition and who pays what, alimony, medical bills and who will carry the insurance and make co-pays, and who will pay the  dental insurance.  It should cover everything, but not be so long that it is too difficult to follow, understand or enforce.

WHAT IS THE DIFFERENCE BETWEEN SURVIVAL AND MERGER

When the divorcing parties appear before the Judge, the Judge hearing the matter will ask for the Separation Agreement.  The Judge will then incorporate the marital agreement into the judgment of divorce.  It is very important to know whether the entire agreement will "merge" into the judgment when it is incorporated into the divorce or whether only parts of the agreement will "merge" and parts will "survive."  This may sound as clear as mud.  What does this legal jargon mean?

SURVIVAL

A Separation Agreement THAT SURVIVES cannot be modified by the Judge following the divorce because it is an independent legal document.  It is a legally binding contract and the Judge cannot change anything, with the exception of child related issues, which are always modifiable. The agreement has what they call "legal legs" all by itself.  A Separation Agreement that survives the Judgment for Divorce, cannot be modified later on by a Judge in the event of a material change in circumstances.  If a party breaches a Separation Agreement that survives the divorce, the party can sue for specific performance of the Separation Agreement in the Probate and Family Court and can sue for breach of contract and damges  in the Superior Court.  

MERGER

A Separation Agreement THAT MERGES, does not separately survive, it becomes the Judgment of divorce.  It is not considered a separate contract.  It IS MODIFIABLE by the Judge.  You could liken, the merged separation agreement to a fruit smoothie.  When you merge all of the fruit into the blender and mix it, you cannot later remove one piece of fruit, for example a banana.  You are left with the smoothie.  The banana is no longer independent or alone.   In the same fashion, the once separate and distinct separation agreement that has "merged" has been combined into the Judgment of Divorce, which gives authority to the Judge to make decisions on future matters.  If there is a material change in circumstances for one of the parties after a divorce, when you have a "merged" agreement, you will go before a Judge for final determination.  If you go before the Judge and say, for example, "My  Separation Ageement says my ex will sell the marital home within one year of the divorce, and it is a year since the divorce and my ex has not sold it."  You may be relying on the exact terms of the Separation Agreement to control the result.  However, it will not be the agreement that survives to control.  Instead, the Judge will say, in effect, I am sorry, but at your divorce, you agreed that your separation agreement would all be merged into the divorce.  We can't go back now and get it out.  Instead, the Judge making a decision under a separation agreement that has "merged" will be able to modify the terms not under the agreement, but under the Judgment of Divorce, which means at the Judges discretion and based on the current or changed circumstances.  Some persons prefer that the Judge have this flexibility; and others do not.  You must be careful when consulting with your attorney on these matters to insure you understand these issues before the divorce takes place as it is too late afterward.

"MY EX TOOK ME FOR EVERYTHING"

It is often very hard for the parties to come to terms with the breakdown of their marriage, especially if it is a long-term marriage.  The process of drafting the agreement forces the client to face all of the issues rather than temporily bury them and have regrets later.   Often after the divorce, one party will say "my ex took me for all I had" or "I just signed everything over because I wanted out."   With an experienced attorney guiding the party, and the party listening to the advice of counsel, these later regrets can be either avoided or at least kept to a minimum. 

WHAT WE CAN DO FOR YOU

At NICASTRO LAW, L.L.C., we have drafted hundreds of agreements over the years, and we know what should be in them and all of the topics that have to be discussed prior to the signing of the agreement.  We assist the client with the negotiation; and we make sure to include such things as the child custody, the parenting plan, the non-disparagement clause, what should be done in a medical emergency, access to the medical records in an emergency, medical decision making, identifying the party with legal custody and the roles of each of the parties, devising the plan for the holidays, vacations, weekends, and including important details such as the rights to reach the child by telephone, who pays the child support  and how much is paid, who pays the educational and college expenses and what contributions each makes in this regard.  We include the responsibility for each party, the asset division, including the division and/or the sale of any marital home, the alimony and any waivers of alimony, health insurance, disability insurance, taxes and who takes the deductions and for which years, who pays for the attorney, what happens if one party files for bankruptcy, and, of course, what should happen upon breach of the agreement by one of the parties after the divorce.