Liz L. v. Ursel U.
CourtMassachusetts Appeals Court
Date FiledSeptember 15, 2026
DocketAC 25-P-281
StatusPublished
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25-P-281 Appeals Court
LIZ L. vs. URSEL U.1
No. 25-P-281.
Suffolk. November 14, 2025. - September 15, 2026.
Present: Rubin, Brennan, & Wood, JJ.
Divorce and Separation, Alimony, Division of property. Husband
and Wife, Antenuptial agreement. Contract, Antenuptial
agreement, Construction of contract. Intent. Evidence,
Intent.
Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on November 7, 2019.
The case was heard by Frances M. Giordano, J.
Thomas H. Sosnowski, of New York (David E. Cherny also
present) for the wife.
Corey Stoughton, of New York (Joshua W. Bean, of New York,
also present) for the husband.
WOOD, J. In 2000, ten days prior to their wedding, Liz L.
(wife) and Ursel U. (husband) executed an antenuptial agreement
1 The parties' names are pseudonyms.
2
(agreement), which they have agreed was valid and enforceable,
addressing various financial matters in the event of a divorce.2
Among other things, the agreement contained certain provisions
for alimony and shielded from equitable division much of the
husband's extensive wealth, including his interests in several
family trusts and holdings in various entities connected to his
family's business (company). Following the commencement of
divorce proceedings in 2019, a judge of the Probate and Family
Court incorporated the agreement's terms into a 2024 judgment of
divorce nisi (divorce judgment). The wife appeals from the
divorce judgment, principally challenging (1) the judge's
decision to terminate alimony upon the husband's attainment of
full retirement age under the Alimony Reform Act (ARA) of 2011,
G. L. c. 208, § 49 (f), inserted by St. 2011, c. 124, § 3; (2)
the judge's exclusion from the assets subject to division under
G. L. c. 208, § 34 (§ 34), of interests in the company that the
husband acquired during the marriage; and (3) the manner in
which the judge deducted the wife's advance for legal fees from
her share of the divisible assets. The husband cross-appeals,
2 This case is subject to an impoundment order issued by the
trial court that has remained in effect pursuant to S.J.C. Rule
1:15, § 2 (b), as appearing in 472 Mass. 1301 (2015). The
impoundment order is lifted with respect to "the information
contained in the opinion [which] is necessary to the resolution
[of] the case." See Adams v. Adams, 459 Mass. 361, 362 n.1
(2011), S.C., 466 Mass. 1015 (2013).
3
contending that the judge made a mathematical error that
artificially inflated the value of some of his divisible assets,
and thus the total value of the assets subject to division.
Because we conclude that the judge erred in interpreting the
parties' agreement, we vacate the provisions of the divorce
judgment pertaining to alimony and property division, and remand
for further proceedings consistent with this opinion.
Background. We summarize the trial judge's relevant
findings, supplementing them with undisputed facts in the
record, and reserving other facts for later discussion.
Cavanagh v. Cavanagh, 490 Mass. 398, 399 (2022). The parties
married in 2000, were married for nineteen years when the wife
filed for divorce, and had two children.
1. Antenuptial agreement. The parties executed their
agreement on October 4, 2000, setting forth various provisions
pertaining to alimony and property division. The agreement's
alimony provision stated that the wife did not waive her right
to alimony if, at the time of the divorce, the parties had
children or had been married for at least nine years.3 The
alimony provision also stated, among other things, that, if the
parties had children, the amount of alimony "to be paid" should
3 The wife otherwise waived her right to alimony, and the
husband waived any rights that he might have to alimony.
4
allow the wife to maintain a lifestyle similar to that
maintained by the parties with the children before the divorce.
With respect to property division, the agreement
categorized each party's individually held assets as either (1)
"Separate Property" or (2) "property, other than Separate
Property" (non-separate property). The agreement defined
"Separate Property" as property owned by each party and listed
on that party's exhibit to the agreement, together with property
acquired during the marriage through specifically enumerated
methods of acquisition. The agreement stated:
"The term 'Separate Property' as used in this Agreement
shall include the property described in the Exhibit of the
party whose name appears therein, together with (a) the
proceeds of any of said property which is sold; (b) all
property subsequently acquired with said proceeds; (c) all
property which is presently held in trust for either party
or is hereafter received by such party by gift,
inheritance, bequest or devise, outright or in trust, or by
distribution (whether income or principal) from a trust;
(d) any other property so designated in writing by both
[the husband] and [the wife] after the date of their
marriage; (e) any appreciation or enhancement in value of
any of the property described in this paragraph; and (f)
the income from Separate Property."
At the time the parties executed the agreement, the total
value of the wife's separate property was a small fraction of
the value of the husband's separate property (which included
various investments, real estate, and trust interests).
The husband waived any rights he might have in the wife's
separate property and non-separate property. The wife, however,
5
did not similarly waive all rights in the husband's property.
Instead, the agreement provided her with specified rights in the
husband's separate property that varied according to the length
of the marriage, and preserved her rights, if any, in his non-
separate property. Specifically, as relevant here, section 4.C
of the agreement stated with respect to separate property:
"If the termination of the marriage occurs upon or after
the fourteenth anniversary of the marriage, [the wife]
shall have the same rights with respect to an equitable
division or assignment of [the husband]'s Separate Property
under [§ 34], or to the applicable, comparable laws of any
other jurisdiction in the event of a termination of the
marriage by divorce . . . but in no event shall [the wife]
be entitled to less than the amount she would receive under
Paragraph 4B [applicable if the marriage lasted between
nine and fourteen years] above. However, for purposes of
this paragraph C, [the husband]'s Interests in [the
company] and [the husband]'s Trust Interests, shall be
excluded from the Separate Property which may be subject to
an equitable division or assignment."
The agreement separately defined "Interests in [the company]"
and "Trust Interests," which section 4.C excluded from the
separate property subject to equitable division or assignment,
as follows:
"(i) the expression 'Interests in [the company]' shall
mean shares of stock of any class and debentures of or
issued by [the company ] . . . or any other organization
succeeding to or carrying on all or any substantial
portion of the business of [the company] and any interest
in any partnership or corporation that was issued to the
shareholders of the [company] as a dividend on shares in
the [company] . . . but shall not include (a) the shares
of any registered investment company or other type of
pooled investment vehicle managed by [the company] or any
affiliate, (b) any Interest in [the company] purchased by
[the husband] within two years prior to the date either
6
party has filed an action for divorce . . . , or (c) any
Interest in [the company] that [the husband] has acquired
at any time after the date of this Agreement with the
intent of reducing that portion of his Separate Property
that would otherwise be subject to equitable division; and
(ii) the expression 'Trust Interests' shall mean all
interests in the trusts described on Exhibit A-1 and any
trusts subsequently funded or created by anyone other than
[the husband]."
As to non-separate property, section 7 provided,
"Nothing herein contained shall affect the rights, if any, of
[the wife] (i) in or to a property settlement from [the
husband]'s property, other than Separate Property . . . ."
The agreement provided that it "shall not be merged" into a
judgment of divorce "but shall survive" the same and "shall be
forever binding and conclusive on the parties." The agreement
further provided that it "contain[ed] the entire understanding
of the parties," and could "not be altered, amended or abrogated
in any manner" (except by a written instrument executed by the
parties).4
2. Marital lifestyle. The parties enjoyed an
"extraordinary, upper-class lifestyle" during the marriage,
maintaining several multimillion-dollar residences with staff,
amassing a fine art and antiques collection, and traveling
4 An agreement that does not merge, and instead survives,
the divorce judgment retains independent legal significance as a
contract. See G. L. c. 208, § 1A. Cf. Gottsegen v. Gottsegen,
397 Mass. 617, 619 (1986).
7
frequently by private jet, among other things. Although the
husband earned a generous income working for one of the
company's business entities, the parties' lifestyle was largely
funded by the husband's family trusts (which owned several of
the residences occupied by the parties during the marriage).
During the marriage, the wife was primarily responsible for
raising the parties' two children (born in 2003 and 2006),
managing the household staff at each residence, decorating the
residences, and attending to the family's philanthropic
endeavors.
3. Divorce proceedings. In November 2019, the wife filed
a complaint for divorce. At the time that the complaint was
served on the husband, the parties had been married for nineteen
years and three months.
A ten-day trial was held in May 2022. During the trial,
2,699 exhibits were entered in evidence and five witnesses
(including both parties) testified.5 Significantly, prior to
trial, the parties filed a stipulation that the agreement was
valid and enforceable. The judge incorporated the stipulation
into the judgment. Despite agreeing to its enforceability, the
parties presented substantially different interpretations of the
5 The three other witnesses were each party's "lifestyle
expert" and the president of the private trust company that
administers the husband's family trusts.
8
agreement's provisions pertaining to alimony and property
division. Relevant to this appeal, the wife asserted that the
agreement entitled her to receive alimony indefinitely and to an
equitable division of interests in the company that the husband
acquired with cash or company loans during the marriage. The
husband, however, asserted that any alimony awarded by the judge
would presumptively terminate on his sixty-seventh birthday
pursuant to G. L. c. 208, § 49 (f), of the ARA, and that the
agreement excluded all of his interests in the company acquired
during the marriage from equitable division, regardless of the
method of acquisition. The judge issued the divorce judgment in
December 2024. Her summary of the relevant procedural history,
findings of fact, and conclusions of law spanned eighty-nine
pages and included 445 findings.
With respect to alimony, having determined the agreement to
be "incomplete" as to "duration," the judge applied the ARA's
retirement provision, ordered the husband's alimony obligation
to terminate upon his attainment of full retirement age in 2031,6
and denied the wife's request to deviate beyond that presumptive
termination date. Consistent with the agreement's alimony
provision, the judge (1) found that "the amount the wife needs
to maintain a lifestyle similar to the lifestyle the parties
6 Or upon the wife's death or remarriage.
9
maintained with their children prior to the termination of the
marriage is $5,808,322" annually;7 (2) subtracted from that $5.8
million annual lifestyle figure the wife's annual income from
other sources (including investment income and child support),
arriving at a net general term alimony obligation of $4,015,215
per year ($334,602 per month); and (3) found that the amount of
the husband's alimony obligation would not "cause his lifestyle
to be reduced below that of the wife."
As for property division, the judge assigned the wife
fifty-five percent of the parties' divisible assets and deducted
from her share the legal fees the husband had paid on her
behalf. To effectuate this, the judge ordered the husband to
transfer a fixed sum to the wife. The parties also retained
their respective nondivisible separate property. The judge
found the husband's nondivisible separate property to include
all of his trust interests, all interest in the company acquired
before marriage, and certain interests in the company acquired
during the marriage.
Discussion. On appeal, the wife challenges the duration of
the alimony award, and both parties challenge certain aspects of
7 This amount includes, among other things, expenses
associated with renting three separate residences; maintaining a
fourth residence; extensive travel (including by private jet);
and acquiring art and antiques.
10
the property division. Because the parties' arguments turn
largely on the interpretation of their agreement, we begin with
"traditional principles of contract law" that guide our review.
Jones v. Jones, 101 Mass. App. Ct. 673, 681 (2022).8
"Contract principles apply to antenuptial agreements, and
the interpretation of an antenuptial agreement is a question of
law, which we review de novo." Rudnick v. Rudnick, 102 Mass.
App. Ct. 467, 470 (2023). The agreement must be "construe[d]
. . . based on a fair construction of the contract as a whole
and not by special emphasis upon any one part" (quotation and
citation omitted), Duval v. Duval, 101 Mass. App. Ct. 752, 757-
758 (2022), "while also recognizing that every word is to be
given force so far as practicable" (quotation and citation
omitted), id. at 758. See General Convention of the New
Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832,
835 (2007) ("The words of a contract must be considered in the
context of the entire contract rather than in isolation").
"[W]hen the language of a contract is clear, it alone determines
the contract's meaning . . ." (citation omitted). Duval, supra.
8 We do not review the judge's finding that the agreement is
valid and enforceable because neither party challenges it. See
Rudnick v. Rudnick, 102 Mass. App. Ct. 467, 470 (2023) (for
antenuptial agreement to be enforceable, it must be both
[1] fair and reasonable at time of execution, and
[2] conscionable at time of divorce).
11
With those principles in mind, we turn to the parties'
contentions regarding alimony and property division.
1. Alimony. The parties disagree whether the ARA's
retirement provision, G. L. c. 208, § 49 (f), which
presumptively terminates alimony upon a payor attaining full
retirement age, was applicable to the alimony award.9
During the proceedings below, the wife contended that the
ARA's retirement provision was inapplicable because (1) the
parties executed a surviving, nonmodifiable agreement containing
an "affirmative covenant" that obligated the husband to pay
alimony indefinitely if the parties had children; (2) the
parties intended for the husband's alimony obligation to be
construed under the law in effect when the agreement was
executed in 2000; and (3) applying the ARA's retirement
provision (which went into effect in 2012) to the husband's
alimony obligation would constitute an impermissible
modification of the parties' valid and enforceable antenuptial
agreement. See Korff v. Korff, 64 Mass. App. Ct. 94, 97-98
(2005) (once antenuptial agreement is determined to be valid and
9 General Laws c. 208, § 49 (f), effective in March 2012,
creates a presumption that alimony shall automatically terminate
when the payor attains full retirement age, which may be
rebutted if the recipient demonstrates good cause to deviate
beyond the presumptive termination date. See G. L. c. 208,
§ 49 (f) (1). Section 53 (e) of G. L. c. 208 sets forth a list
of nonexhaustive grounds for deviation.
12
enforceable, judge is "obligated to enforce its terms as
written" and cannot modify it).
The husband, however, contended that the ARA's retirement
provision was applicable because (1) the parties' agreement
merely contained a nonwaiver, or reservation, of the wife's
right to seek alimony if any children were born of the marriage;
and (2) the agreement lacked express language addressing the
duration of alimony, thereby demonstrating the parties' intent
to leave that issue for future determination under the law in
effect at the time of divorce (rather than the law in effect in
2000). See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 769
& n.2 (2014) (where parties' agreement was incorporated into
pre-ARA divorce judgment and contained reservation of rights to
seek future alimony, alimony awarded in subsequent modification
proceeding was properly subject to ARA then in effect).
The judge concluded that the agreement merely reserved the
wife's right to seek alimony in the future, leaving the
determination of her entitlement to alimony to the law in effect
at the time of divorce. The judge also concluded that the
parties' agreement was "incomplete" as to the duration of any
alimony award because it did not specify when alimony would
terminate and instead left the issue "to be determined by the
Court." The judge stated that the agreement's "silence as to
when alimony terminates [did] not compel [her] to determine that
13
it continues indefinitely" and, thus, applying the ARA's
retirement provision would not alter the parties' agreement.
Ultimately, the judge ordered the husband's alimony obligation
to terminate upon his attainment of full retirement age pursuant
to G. L. c. 208, § 49 (f), and denied the wife's request for a
deviation extending alimony beyond that date.
We conclude that (1) the law as it stood at the time of the
agreement, rather than at the time of the divorce, applies; (2)
the parties' agreement was not merely a reservation of rights,
but rather establishes an affirmative obligation for the husband
to pay alimony if at the time of the divorce the parties have
children; and (3) the ARA does not apply to the alimony
provision of the agreement.
a. Applicable law. In determining the law applicable to
the parties' agreement, "[a]s a general rule, the law existing
at the time an agreement is made necessarily enters into and
becomes part of the agreement." Feakes v. Bozyczko, 373 Mass.
633, 636 (1977). "In contrast, laws enacted after the execution
of an agreement are not commonly considered to become part of
the agreement unless its provisions clearly establish that the
parties intended to incorporate subsequent enactments into their
14
agreement." Id.10 See Mayor of Salem v. Warner Amex Cable
Communications Inc., 392 Mass. 663, 666-667 (1984) (Mayor of
Salem) (holding that statutory amendment was inapplicable to
parties' agreement executed two years earlier because agreement
did not expressly state that future amendments would apply).
Here, the parties' agreement contains no indication that
they intended to be bound by future changes in the law with
respect to alimony. See Mayor of Salem, 392 Mass. at 666-
10 In Feakes, 373 Mass. at 634, 636, the parties' separation
agreement provided that child support would terminate upon the
children attaining the age of "majority," which was then twenty-
one under the common law. A new statute was later enacted
lowering the age of majority to eighteen. Id. at 636. The
Supreme Judicial Court held that it was error to apply the new
statutory age of majority to the father's child support
obligation in the absence of any indication that the parties
intended for future enactments to apply to their agreement. Id.
at 636-638. Here, the trial judge sought to distinguish the
case at hand from Feakes because the latter involved a
separation agreement that had already been incorporated into a
judgment when the statutory question arose. However, that
distinction is immaterial inasmuch as the relevant date is when
the agreement is executed, not when it is incorporated into a
judgment. See Feakes, supra at 636 (under general rule,
agreement incorporates law in effect when it "is made" and
excludes "laws enacted after [its] execution" [emphases added]).
This is especially true where, as here, the agreement was
intended to survive the divorce judgment and retain significance
as an independent contract -- which, among other things,
preserved the parties' ability to enforce it like an ordinary
contract. See Rubin v. Rubin, 29 Mass. App. Ct. 689, 697 (1991)
(surviving agreement may be enforced in action at law for breach
of contract).
15
667.11,12 We thus conclude that the law in effect at the time the
agreement was executed in 2000, but not subsequent enactments,
Contrary to the husband's assertion, the language of
11
section 6 waiving rights to alimony under "future laws" fails to
establish that the parties intended future laws to govern
alimony rights not expressly addressed in the agreement. The
language of section 6, including the reference to future laws,
is clearly intended to waive all potential rights to alimony
beyond those expressly provided for in section 5. This is
reflected in section 6's express waiver of any potential alimony
rights that could arise "if the parties have no living children
at [the time of divorce] and the termination of the marriage
occurs prior to the ninth anniversary of the marriage." Section
5 creates an obligation to pay alimony under only two
circumstances -- if the parties have children, or if the
marriage lasts at least nine years. Accordingly, section 6
reflects the parties' clear intent to waive any potential rights
to alimony that could arise outside the two limited
circumstances expressly provided for in section 5.
We are unpersuaded by the husband's contention that the
12
parties' failure to include in section 5 an express reference to
G. L. c. 208, § 34, which governed both property division and
alimony in 2000, "demonstrates that they did not intend to
incorporate existing alimony law into the [agreement]." The
relevant inquiry is not whether the parties expressly stated
their intent to incorporate the law existing at the time the
agreement was made. Rather, under the general rule,
incorporation of existing law (and exclusion of subsequently
enacted laws) is presumed unless the parties expressly state
their intent to be bound by future changes in the law. See
Mayor of Salem, 392 Mass. at 666-667; Feakes, 373 Mass. at 636.
We are unpersuaded by the husband's attempts to distinguish
Mayor of Salem and Feakes by relying on the framework of General
Motors Corp. v. Romein, 503 U.S. 181, 189 (1992). Mayor of
Salem does not stand for the narrow proposition that a
subsequently enacted statute (or amendment) affects the
construction, i.e., legal effect, of an agreement only if the
agreement expressly references the law in effect when it was
made. The husband's attempt to distinguish Feakes fares no
better because it rests on his claim that the agreement merely
reserves the wife's right to seek alimony and therefore creates
no vested right to receive alimony. The husband contends that,
16
applies to the agreement. See id.; Feakes, 373 Mass. at 636.
The inquiry does not end here, however.
b. Affirmative obligation and the ARA. In determining
whether the parties' agreement established an enforceable
obligation for the husband to pay alimony, or a mere reservation
of the wife's right to seek alimony in the future, the parties'
intentions control. See Mayor of Salem, 392 Mass. at 667;
Feakes, 373 Mass. at 636. Because the words of the parties'
agreement remain the most important evidence of their intention,
see Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973), we
examine the language of section 5, which addresses alimony:
"5. Termination of Marriage with Children or Termination
of Marriage on or after Ninth Anniversary -- Alimony. [The
husband] and [the wife] acknowledge that if they have
children at the time of termination of the marriage, it
could create difficulties in their relationships with their
children if, following the termination of the marriage, the
parents enjoyed substantially different lifestyles.
Therefore, the parties agree that, if the parties have
children at the time of the termination of the marriage,
[the wife] expressly does not waive her right to receive
alimony or support from [the husband] and that they will in
good faith negotiate (and, if appropriate, from time to
time renegotiate) an amount of alimony to be paid by [the
husband] to [the wife] to allow her to maintain a lifestyle
similar to the lifestyle the parties maintained with their
children prior to the termination of the marriage, taking
into consideration all other sources of support available
because the agreement merely reserves the wife's right to seek
alimony and creates no vested right to receive alimony, the
subsequent enactment of the ARA does not alter the agreement's
legal effect. As discussed herein, we do not agree with the
husband that the alimony provision merely reserves the wife's
right to seek alimony.
17
to [the wife] (including without limitation child support
payments and earnings on investments); provided, however,
that such payments shall not cause [the husband] to reduce
his lifestyle below that of [the wife's]. [The wife]
expressly does not waive her right to receive alimony or
support from [the husband] if the termination of their
marriage occurs on or after the ninth anniversary of their
marriage, whether or not they have children." (Emphases
added.)
The language of section 5 reflects the parties' intent to create
an affirmative obligation to pay alimony rather than merely to
reserve the wife's right to seek it. The first sentence
expresses the parties' shared desire to avoid "difficulties in
their relationships with their children" caused by
"substantially different" postdivorce lifestyles. The second
sentence achieves that purpose by providing that the wife
reserves her right to alimony and that the parties "will in good
faith negotiate . . . an amount of alimony to be paid by [the
husband]" (emphases added). The parties' use of "will" and "to
be paid," rather than permissive or conditional language (e.g.,
"may" or "if"), is significant. See Matthews v. Rakiey, 38
Mass. App. Ct. 490, 495 (1995) ("will" -- like "shall" and
"must" -- is "language of an unmistakably mandatory character"
[citation omitted]). See also Rosnov v. Molloy, 460 Mass. 474,
479 (2011) ("may" is typically permissive, whereas "shall"
usually imposes mandatory obligation [citation omitted]). The
second sentence also contains three parameters for calculating
the amount of alimony: (1) the amount must allow the wife to
18
maintain a lifestyle similar to that which the parties
maintained with the children prior to the divorce, (2) the
alimony calculation must account for the wife's other sources of
income (including, but not limited to child support and
investment income), and (3) the alimony payments cannot cause
the husband's lifestyle to decline below that of the wife.
Finally, the agreement does not specify any event that would
terminate the obligation; to the contrary, the second sentence
contains temporal language ("from time to time") reflecting the
parties' agreement to an indefinite duration for the husband's
alimony obligation.13
We agree with the wife that the first two sentences of
section 5 unambiguously express the parties' intention to
establish an indefinite and enforceable, affirmative obligation
for the husband to pay alimony if they have children, with three
specific parameters for calculating the amount to be paid. Cf.
Korff, 64 Mass. App. Ct. at 97-98 (parties' antenuptial
agreement established enforceable, nonmodifiable alimony
obligation that generally called for husband to pay wife
percentage of income subject to annual adjustments, even though
13Black's Law Dictionary 915 (12th ed. 2024) defines
"indefinitely" as "[f]or a length of time with no definite end."
19
alimony provision lacked necessary mechanism to calculate income
and was thus vulnerable to manipulation by husband).
In sum, because we have concluded that the parties intended
to be bound by the law in effect at the time they executed the
agreement, the ARA is inapplicable to the husband's enforceable,
affirmative alimony obligation. Accordingly, on remand, the
judge shall amend the divorce judgment to make clear that the
ARA's durational limit shall not apply to the husband's alimony
obligation.14
2. Property division. The parties raise the following
contentions with respect to the property division. First, the
wife contends that the judge erroneously excluded from the
divisible assets the following interests in the company acquired
during the marriage: company shares the husband received during
the marriage, interests he received as dividends on those
shares, and debentures he acquired during the marriage. Second,
the wife asserts that the judge erroneously deducted the wife's
14The judge thus erred in concluding the agreement is
incomplete because it does not specify a durational limit on
alimony. The absence of a specified end date does not render
the agreement incomplete; rather, it reflects the parties'
agreement to an alimony obligation of indefinite duration.
Beyond that, the agreement provides that "[t]his Agreement may
not be altered, amended or abrogated in any manner, except by an
instrument in writing duly executed and acknowledged by both of
the parties." Because the parties' agreement survived, rather
than merged with, the divorce judgment, it may not be modified
under the familiar "material change in circumstances" standard.
20
advance distribution of legal fees from her share of the net
divisible assets (i.e., the assets remaining after all advance
distributions were already deducted), rather than from her share
of the gross divisible assets (i.e., the total assets prior to
the deduction of advance distributions). Third, the husband
contends that the judge made a mathematical error that
artificially inflated the value of his divisible assets. We
address the parties' contentions in turn.
a. Interests in the company. At issue is the judge's
exclusion from the husband's divisible assets of the following
interests in the company that he acquired during the marriage:
(1) company shares purchased with loans from the company; (2)
interests in company investor entities received as dividends on
those shares; and (3) company debentures15 purchased with cash.
The wife contends that the judge erroneously treated these
interests in the company as nondivisible based on an incorrect
interpretation of the parties' agreement. Our review begins
with an examination of the agreement's language to ascertain the
parties' intentions. See Robert Indus., Inc., 362 Mass. at 755.
15As stated in the judge's findings, debentures are "long-
term debt instruments that provide a favorable rate of return,"
which are made available to the company's "senior employees,
shareholders, and their spouses."
21
i. Parties' intentions. As described above, the agreement
contains the following relevant provisions concerning property
division.
"[Section] 2. Definition of Separate Property. The term
'Separate Property' as used in this Agreement shall include
the property described in the Exhibit of the party whose
name appears therein, together with (a) the proceeds of any
of said property which is sold; (b) all property
subsequently acquired with said proceeds; (c) all property
which is presently held in trust for either party or is
hereafter received by such party by gift, inheritance,
bequest or devise, outright or in trust, or by distribution
(whether income or principal) from a trust; (d) any other
property so designated in writing by both [the husband] and
[the wife] after the date of their marriage; (e) any
appreciation or enhancement in value of any of the property
described in this paragraph; and (f) the income from
Separate Property."
"[Section] 4. Termination of Marriage -- Property
Settlement from [the Husband's] Separate Property. In the
event of the divorce . . . of the parties . . . , [the
wife] shall be entitled to the following payments from [the
husband's] Separate Property:
". . . .
"B. If the termination of the marriage occurs within the
period from the ninth anniversary of the marriage until the
fourteenth anniversary of the marriage, [the husband] shall
pay to [the wife] the greater of (i) seven hundred fifty
thousand dollars ($750,000) plus an amount equal to one
hundred thousand dollars ($100,000) multiplied by the
number of years (or any portion thereof) which have elapsed
between the ninth anniversary of the marriage and the date
of the termination of the marriage or (ii) an amount equal
to twenty-five percent (25%) of [the husband's] Separate
Property. For purposes of this paragraph B, [the
husband's] Separate Property shall not include [the
husband's] Interests in [the company] nor his Trust
Interests. For purposes of this Agreement, the following
definitions shall apply: (i) the expression 'Interests in
[the company]' shall mean shares of stock of any class and
debentures of or issued by [the company] . . . or any other
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organization succeeding to or carrying on all or any
substantial portion of the business of [the company] and
any interest in any partnership or corporation that was
issued to the shareholders of the [company] as a dividend
on shares in the [company] . . . but shall not include
(a) the shares of any registered investment company or
other type of pooled investment vehicle managed by [the
company] or any affiliate, (b) any Interest in [the
company] purchased by [the husband] within two years prior
to the date either party has filed an action for divorce
. . . , or (c) any Interest in [the company] that [the
husband] has acquired at any time after the date of this
Agreement with the intent of reducing that portion of his
Separate Property that would otherwise be subject to
equitable division; and (ii) the expression 'Trust
Interests' shall mean all interests in the trusts described
on Exhibit A-1 and any trusts subsequently funded or
created by anyone other than [the husband].
"C. If the termination of the marriage occurs upon or
after the fourteenth anniversary of the marriage, [the
wife] shall have the same rights with respect to an
equitable division or assignment of [the husband's]
Separate Property under [G. L. c. 208, § 34], or to the
applicable, comparable laws of any other jurisdiction in
the event of a termination of the marriage by divorce,
. . . but in no event shall [the wife] be entitled to less
than the amount she would receive under Paragraph 4B above.
However, for purposes of this paragraph C, [the husband's]
Interests in [the company] and [his] Trust Interests, shall
be excluded from the Separate Property which may be subject
to an equitable division or assignment." (Emphases added.)
"[Section] 7. Rights in Property Other than Separate
Property.
"A. ·Nothing herein contained shall affect the rights, if
any, of [the wife] (i) in or to a property settlement from
[the husband's] property, other than Separate Property, or
(ii) to receive alimony or support from [the husband],
other than alimony or support from or based upon [the
husband]'s Separate Property, in the event of the divorce
. . . of the parties and any such rights are in addition to
[the wife's] rights under Paragraphs 4 and 5 above.
"B. [The husband] waives, releases and covenants not to
pursue any claim or right which he might otherwise have
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(i) in or to [the wife's] property, other than Separate
Property or (ii) to receive alimony or support from [the
wife], in the event of the divorce . . . of the parties."
Upon examining the plain language of sections 2, 4, and 7
(along with other relevant sections), we conclude that the
agreement creates two main categories of assets, separate
property and non-separate property. "Separate Property" is
defined in section 2. As used in section 7, the only place it
appears, the term "non-Separate Property" encompasses any
property that does not meet the definition of "Separate
Property." The wife retained certain rights to the husband's
separate property, which are triggered by the length of the
marriage. Section 4 outlines the minimum property settlement to
which the wife is entitled from the husband's