Parties entered into a separation agreement which provided that the husband was to pay $275.00 per week in alimony. The agreement did not mention merger or survival. The judgment nisi, however, stated that the agreement survived. Years later, when the ex-husband sought a modification, the ex-wife moved to dismiss his complaint on the grounds that the agreement survived and that the ex-husband could not meet the “countervailing equities” standard necessary to modify a survived agreement. The Probate Court judge allowed the motion to dismiss and the Appeals Court affirmed. The case reminds practitioners of the general rule regarding survival – that is, unless the parties expressly provide otherwise, an agreement will be held to survive. Another reminder is that when the judgment nisi arrives in the mail, read it. If you don’t agree with it, avail yourself of the applicable post-judgment remedies before it is too late. Thomas v. Thomas, 71 Mass.App.Ct. 1126 (May 30, 2008).
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