This ONE word in your divorce agreement comes with a huge risk- don’t ignore it.

You may be surprised to hear that most divorces ultimately end with an agreement on all issues; very few cases go to trial. However, there is ONE WORD in a divorce agreement that most laypeople do not understand that can significantly alter your rights. That word is “survive”.

The provisions of divorce agreements must be designated to either “survive” or “merge”, in whole or in part.

Merged provisions are modifiable upon a showing of a material change in circumstances. For instance, if you agree to pay $30,000 a year in alimony and your income is substantially reduced for a legitimate reason, you have a right to petition the Court to seek a modification of alimony.

Surviving provisions are difficult to impossible to ever change, even if circumstances warrant it. Surviving provisions take away a great deal of the Court’s power to do what is fair if circumstances change. If you agree to pay $30,000 a year in alimony in a surviving Agreement, and your income is substantially reduced for a legitimate reason, the burden you bear to seek a reduction in support is a much higher one. You have to show countervailing equities—something much more than a material change in circumstances. You could be forced to pay the $30,000 a year in alimony despite your reduced income. All because of the word “survive”. 

Surviving support provisions in an Agreement are risky business. As a recipient, you could be unable to capitalize on a substantially increased income of a former spouse. As a payor, you could be unable to reduce an otherwise unfair amount of support. There are valid reasons for a party to enter into a “surviving” provision, but it is of paramount importance that both parties understand what they are signing. Know your rights, and know your obligations. Seek the advice of a seasoned attorney before you sign, not after.

Scroll to Top