A separation agreement is an agreement between two married people to live apart for an unspecified period of time, perhaps forever. Generally, a separation agreement covers alimony; child support and custody arrangements if there are children; payment of bills and management of separate bank accounts; and may also determine division of property if the separation appears permanent. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.

This raises the question of what becomes of the separation agreement upon a judgment of divorce. Separation agreements are said to either “merge” or “survive” divorce, meaning that either the agreement is merged into (becomes part of) the divorce judgment, or, while its terms are incorporated into the divorce judgment, the agreement remains a separate and independent legal contract.

When a separation agreement is “merged” into a judgment of divorce, its terms are modifiable by the court (which retains the power to revise or modify its previous judgment). Thereafter, the “merged” separation agreement has no separate legal standing.

However, when a separation agreement “survives” a decree of divorce, it stands as a contract between the parties and can be enforced in civil proceeding in Superior Court or Probate Court, and any violation of the agreement is enforcible under the contempt power of the Court.

In many cases, it is not as simple as “merge” vs. “survive” as some parts may be treated separately. In almost all circumstances, child related provisions merge and/or change. Property division usually survives. Alimony and, increasingly, health insurance provisions may be handled in a merge.