My husband and I get along well and have decided to save money and handle a divorce on our own. We found some forms online and filled them out. We have a hearing next month on our divorce petition. A friend suggested I go sit in the courtroom to watch the judge assigned to our case before my date. I did and am now nervous. The judge asked a lot of questions about concepts I am not sure I understand. I am worried if we don’t answer the questions right we won’t get divorced.
Can you explain what it means to merge an agreement and what it means to survive an agreement? If we need to make a change to our agreement, I would prefer to know now.
Merger and survival are legal terms. When you sign a separation agreement, if you have provisions that merge, it means you can go back to court at some later date, if the circumstances change, and adjust the terms of the agreement. If you survive provisions in your agreement, it means you cannot go back later and change the terms regardless of the change in circumstances.
For practical purposes, you need to make sure any provisions that relate to minor children merge. So, things like your parenting plan, legal custody of the children, child support, who will cover the children on their health insurance plans, how much life insurance will be maintained to secure child support and/or college expenses, how college expenses will be paid, how you will allocate any child tax credits all need to be merged. In that way, as your children grow and their needs change, you can go back and revisit the terms of your agreement to be sure your children’s needs are met.
On the other hand, you will want to survive things like asset division, debt division and how you will handle income tax return filings. Because those things involve your financial stability, you need the predictability of knowing your property division cannot be changed later on if, for example, your husband goes to Vegas and loses his share of the assets by betting it all on red. You want the peace of mind that he cannot come back and ask for half of your half of the assets.
Finally, there is the issue of alimony. You can elect to merge alimony or survive it. There are pros and cons to both options. A merged alimony provision protects the payor if she or he loses a job and cannot make the payments. But, if you are both working and waiving alimony, a surviving alimony waiver may be attractive so you cannot later be ordered to pay something you did not now bargain for. Before you survive an alimony waiver, ask the clerk if the judge assigned to your case permits it — not all of them do.