Merger vs. Survival

Separation agreements often include a merger or survival clause.  This legalese has significant meaning.

A merged agreement becomes one with the divorce.  In other words, a merged agreement no longer stands as a separate contract; it is part of the divorce.  Since a merged agreement no longer stands alone, one cannot pursue contract remedies to enforce it.  Instead, one must file a motion for contempt of the divorce order.

A surviving agreement, on the other hand, continues to stand as an independent contract.  Thus, to enforce a surviving agreement, one may employ ordinary contract remedies, such as breach of contract.  Unlike merged agreement, surviving agreements cannot be modified by the ordinary standard of a “material change of circumstances.”  A higher standard applies for changing surviving agreements.