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HomeMy WebLinkAbout96-01247 j .~ 1 , I I i I J ~i I ! I / / /' ./ I ! I I I I 1 I j ('-... I , ~) ~ ()- .:teo ':ie' .:e .:;c. .w,. .. .:<<. ':c. .:c. ~ I - -. --- , -'" _. "..'-" .. .. . ... iii: '1 ~! 8! I ~i ~ ~ " ~1 8 8 8 8, 8 8 8 ~ 8 81 ~q . i 8 8 8 * 8 ~ * 8 8 8 - . 8 ~ . . , -- ---- .. .. ---...., . . .. .:c. '.. .:<<. .;.:. .:.;, .:f(. ,~.:' ,~<<, .:.:. .:.:. ':<<. :. .:<<. <<<. .:<<-. .;.;. .:<<. <<< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF ~4~ PENNA. STEPHEN W. POVILAITIS, Plaintiff ;\;t). 96..1247 CIVIL. TERM VI'r,'ll.; KIEU LANA POVILAITIS, Defendant OOE,C/OE; C ~ Nit I :~7fJ.1 AND NOW"... July... Y............ 19 .~7.... it is ordered and decreed that...... STEPHENW.POVILAITIS................., plaintiff, and. . . . . . KI.EU. LANA. PQVILAITIS. . . . . . . . . . . . . . . . . . . . . . . . . . '. defendant. are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which hove been raised of record in this action for which 0 final order has not yet been entered; None .Tne. ,terms. ,of. the. parties' ,Separation. and ,Property. .Settl.ement . . .A9relOl.l1leot:.. .enterea. into. on July 2 ,. .1.997. are. incorporated .heraLn. ," '.) // ;07 -.I/~J_ . '_7~,""Jc.L'&'.l ~~~~'f'( ~~~ -0' ';t.-<4~"''- ~ .--:.......1. C. ~],r- .. ~/ '/P;&onotary .:.;. ':.;. .:.;. -:.;. :.;.:.;. .:.:. .:.:. .;.;. -:.:. .:c' ':lit .:c- 11 ., '" .. (. i. i8 I. I. i. . . 8 8 8 '.. . . , SEPARATION AND PROPERTY SETTLEMENT AGREEMENT THlS AGREEMENT made this ;) l\, & day of } ~ ' 1997, by and between STEPHEN W. POVILAITIS, of200 TAMMC, CMR 429, Box 1106, APO AE (hereinafter referred to as "Husband"), AND K. LANA POVILAITIS. of 231 East King Street, Shippensburg. Cumberland County. Pennsylvania (hereinafter referred to as "Wife"). WITNESSETH: WHEREAS, Husband and Wife were lawfully married on April II, 1975, in Saigon Thu Duc, Vietnam. WHEREAS, Wife is a resident of the Commonwealth of Pennsylvania with Husband claiming Pennsylvania as his legal residency during his assignment overseas as a federal civilian employee in the Country of Germany. . WHEREAS, certain differences have arisen between the parties hereto which have made them desirous of living separate and apart from one another; and WHEREAS, Husband and Wife desire to settle and determine certain of their marital rights and obligations, and make an equitable distribution of their marital property. determine their rights to alimony and support and any other mailers which may be considered under the Domestic Relations Code; and WHEREAS, it is the intention and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other and to settle all financial and property rights between them; and . . WHEREAS, the parties hereto have mutually entered into an Agreement for the division of their jointly owned assets, the provisions for the liabilities they owe, and provisions for the resolution of their mutual differences, after both have had full and ample opportunity to consult with attorneys of their respective choice, the parties now wish to have that agreement reduced to writing. NOW, TIIEREFORE, the parties hereto in consideration of the mutually made and to be kept promises set forth hereinafter and for other good and valuable consideration, and intending to be legally bound and to legally bind their heirs, successors, assigns, and personal representatives, do hereby covenant, promise and agree as follows: ARTICLE I SEPARA TION 1,1 It shall be lawful for Husband and Wife at all times hereafter to live separate and apart from each other and to reside from time to time' at such place or places as they shall respectively deem fit free from any control, restraint, or interference, direct or indirect, by each other. Neither party shall molest the other or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings, The foregoing provision shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness of the causes leading to them living separate and apart. ARTICLE II DIVORCE 2.1 This Agreement is not predicated on divorce. It is specifically understood and agreed by and between the parties hereto that each of the said parties dots hereby warrant and represent to the other that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided. however, . that nothing contained in this Agreement shall prevent or preclude either of the partics hercto from commcncing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, Icgal and propcr grounds; not to prevent either pany from defending any such action which has bcen, may, or shall be instituted by the other pany, or from making any just or proper defense thereto. It is warranted, convenanted, and represented by Husband and Wife, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant, and representation is made for the specific purpose of inducing Husband and Wife to execute the Agreement. Husband and Wife each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal, or for any reason whatsoever of public policy, unenforceable in whole or in part. Husband and Wife do each hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever by estopped from assening any illegality or unenforceability as to all or any pan of this Agreement. 2,2 It is further specifically understood and agreed that the provision of this Agreement relating to the equitable distribution of propeny of the parties are accepted by each party as a final settlement for all purposes whatsoever. Should either of the panies obtain a decree, judgment or order of separation or divorce in any other state, country, or jurisdiction, each of the panies to this Agreement hereby consents and agrees that this Agreement and all its covenants shall not be affected in any way by any such separation and divorce. 2,3 This Agreement shall survive any decree in divorce and shall be forever binding and conclusive on the panies. It is understood by and between the parties that this Agreement shall be incorporated into any decree, divorce or separation, but it shall not be deemed merged in such decree. ARTICLE 11/ EQUITABLE DISTRIBUTION OF MARITAL PROPERTY 3,1 The parties have attempted to divide their marital property in a manner which conforms to the criteria set forth in the Pennsylvania Domestic Relations Code, and taking into account the following considerations: the length of the marriage; the prior marriages of the parties; the age, health, station, amount and sources of income, vocati~na1 skills, employability; estate, liabilities, and needs for each of the parties; the contribution of one party to the education, training or increased earning power to the other party; the opportunity of each party for future acquisition of capital assets and income; the sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation of marital property, including the contribution ofa party as a homemaker; the value of the property set apart to each party; the standard of living of the parties established during their marriage; the economic circumstances of each party, including federal, state and local tax ramifications, at the time of the division of the property is to become effective; and whether the parties will be serving as the custodian of any dependent minor children. 3,2 The division of existing marital property is not limited to the parties to constitute in any way a sale or exchange of assets and the division is being effected without the introduction of outside funds or other property not constituting marital property. The division of property under this Agreement shall be in full satisfaction of all rights of equitable distribution of the parties. _... I 3.3 Personal Propertv, The parties acknowledge that they have divided their personal property, tangible and intangible, to their mutual satisfaction. Parties further acknowledge that they have the cash, accounts, or other tangible or intangible property in their possession that they wish to have and neither will make any claim whatsoever against the other party for any other items of personal property or assets that are in other party's possession. 3.4 Life Insurance. Each party agrees that the other party shall have sole ownership of any life insurance policies owned by the other party. Each party shall have the right to borrow against, cash in policies, change beneficiaries, and exercise any other incidents of ownership of the respective policies free of any right or claim by the other party. Each party agrees to sign any documents necessary to waive, relinquish or transfer any rights in such policies to the respective party who presently owns such policies. 3.5 SubseQuently ACQuired Property. Husband and Wife agree to waive and relinquish any and all right that he or she may now have or hereafter acquire in any real or tangible personal property subsequently acquired by the other party. Husband and Wife specifically agree to waive and relinquish any right in such property that may arise as a result of the marriage relationship. 3,6 Real Estate. The parties are the joint owners of real estate located at 23 I East King Street, Shippensburg, Cumberland County, Pennsylvania. Husband shall execute a Special Warranty Fee Simple Deed conveying all of his right, title and interest in the aforesaid real estate to Wife. From the time of execution of this agreement forward, Husband shall make no additional claim of any nature whatsoever relative to any legal or equitable interest in the aforesaid real estate. Wife shall have prepared and presented to Husband, through counsel, a deed for execution. Husband shall execute the deed within fifteen (15) days of receipt. 3.8 Vehicles, The parties, since their separation, have already distributed ownership and possession of any vehicles that were secured by them during their marriage. Each party shall retain sole and exclusive ownership and possession of the vehicle presently in their possession. In the event it is necessary to execute any title documents to transfer ownership to the party in possession, the party who must transfer their ownership interest shall execute any documents presented to them within fifteen (1 S) days of receipt and shall deliver those executed documents to the party who is securing ownership of the vehicle. 3,9 Intanlrible Personal ProlJertv. The parties have already transferred or waived rights and interests in other intangible personal property, including their various bank accounts, credit union accounts and the like. Neither party will make any claim of any nature whatsoever against the other relative to financial accounts or other investments or intangible personal property that has already been retained by the other party. ARTICLE IV ALIMONY, ALIMONY PENDENTE LITE, SPOUSAL SUPPORT, CHILD SUPPORT AND MAINTENANCE 4,1 The parties acknowledge that they are parties to an Order of Court entered in the Cumberland County Court of Common Pleas, Domestic Relations Section, to DR #23.107 or No. 921 S 1994 requiring the Husband to meet certain financial obligations for the support of his minor child, JOliN PAUL POVlLAITIS, born July 12, 1982. The parties shall continue to be guided by this Order and the dictates of the law in the Commonwealth of Pennsylvania as implemented by the Cumberland County Domestic Relations Office relative to child support. The parties further acknowledge that this real estate encumbered with a mortgage in the parties' joint names. From the date of execution of this Agreement forward, Husband shall be solely and exclusively responsible for the payment of the mortgage that is due and owing on the aforesaid property and shall continue making monthly payments until the mortgage is paid in full. Husband shall pay the aforesaid mortgage in full within thirty (30) days of execution of this Agreement by Wife. Husband shall indemnifY Wife and hold her harmless from and against any demands for payment or collection activity of any nature whatsoever relative to the sum due on the mortgage on the aforesaid property. Except for the real estate referenced herein, the parties acknowledge that they do not have any legal or equitable interest in any other real estate. 3.7 Pension. Retirement. Profit.Shll1'lnl[. Wife shall waive, relinquish and transfer any and all right, title and interest she has in Husband's pension through his employment with the United States Government. Wife acknowledges that Husband does have an employment benefit available to him through his employment with the United Stales Government and will execute any documents necessary to waive her interest in these retirement accounts of whatever nature, but not limited to the Federal Employee Retirement System Plan (FERS), the Civil Service Retirement System Plan (CSRS), the Thill Savings Plan, or any other retirement or pension plans made available to Husband. Wife hereby waives, relinquishes and transfers any and all right, title and interest she has in the aforesaid retirement accounts, as well as any other such accounts that Husband may have in his individual name or may have been secured through his present or prior employment. Husband shall waive, relinquish and transfer any and all right, title and interest he has in any pension, profit-sharing or retirement accounts secured by Wife. Husband so waives, relinquishes and transfers any and all right, title and interest he has in any such retirement account, including any individual accounts or any accounts or benefit plans that may have been secured through Wife's present or prior employment. 4.2 The parties agree that from the time of execution of this Agreement forward, Husband shall continue to make alimony payments to Wife in the amount (If ONE THOUSAND ONE HUNDRED FOURTEEN and 50/100 (SI,114.50) DOLLARS per month for a set period of twenty-four (24) months. This shall be Husband's sole alimony obligation to Wife and he shall not be obligated to provide any additional type of spousal support, maintenance or alimony. This amount may be collected through the Cumberland County Domestic Relations Office as Wife deems appropriate or payment can be made directly by Husband to Wife. The determination of whether payments are made directly or through the Cumberland County Domestic Relations Office shall be in Wife's sole discretion. In the event Wife uses the services of the Cumberland County Domestic Relations Office for collection of the alimony amount agreed upon herein, she shall so notifY the Domestic Relations Office that effective with the June 1997 payment made by Husband under the Domestic Relations Order docketed to DR #23,017, No. 921 S 1994, shall be considered alimony under the terms of the within Agreement. In the event Wife agrees to take alimony payments directly from Husband and not use the services of the Cumberland County Domestic Relations Office, she shall immediately noti/}' the Cumberland County Domestic Relations Office that the spousal support portion of the aforementioned Order requiring the payment of ONE THOUSAND ONE HUNDRED FOURTEEN and 501100 (SI,114.50) DOLLARS per month shall cease effective with the month of June 1997. Husband's agreement to pay ONE THOUSAND ONE HUNDRED FOURTEEN and 501100 (SI,114.50) DOLLARS per month in alimony shall be non-modifiable. All other provisions of the Order of Court dated November 3, 1995 relative to the payment of child support, shall remain in full force and effect. All provisions of the Order of Court dated November 3. 1995 relative to spousal support shall be vacated. In the event Wife determines that she wishes to have the Cumberland County Domestic Relations Office continue to receive payments of alimony in the amount set forth above, this shall be the sole benefit made available to Wife through the Cumberland County Domestic Relations Office relative to Wife's support and shall be Husband's sole obligation relative to Wife's support. 4.3 The parties herein acknowledge that except for the provisions set forth in Paragraph 4.2 above, they have each secured and maintained a substantial and adequate fund with which to provide themselves sufficient resources to provide for their comfort, maintenance and support in the station of life in which they are accustom. Husband and Wife do hereby waive, release and give up any rights they may respectfully have against the other for alimony, support or maintenance except as provided for in Paragraph 4.1 above. 4,4 Except as specifically set forth herein, Hus'-'and and Wife specifically waive, release and give up any and all rights for alimony, alimony pendente lite and spousal support pursuant to Chapter 37 of the Domestic Relations Code. ARTICLE V DEBTS OF THE PARTIES 5,1 Each party represents to the other that except as otherwise specifically set forth in this Agreement, there are no major outstanding obligations of the parties; that since the separation neither party has contracted for any debts for which the other will be responsible and each party indemnifies and holds harmless the other for all obligations separately incurred or assumed under this Agreement. ARTICLE VI MISCELLANEOUS PROVISIONS 6.1 Advice of Counsel. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, being Bradley L. Griffie, Esquire for Husband and Wayne F. Shade, Esquire for Wife. The parties acknowledge that they have either received independent legal advice from counsel of their own selection, that they fully understand the facts and have been fully informed as to their legal rights and obligations or otherwise understand those legal rights and obligations, They acknowledge and accept that this Agreement is, in the circumstances, fair and equitable, that it is being entered into freely and voluntarily, after having received such advice and with such knowledge that execution of this Agreement is not the result of any duress or undue influence, and further that it is not the result of the collusion or improper or illegal agreement or ag:eements. 6.2 Counsel Fees. Each party agrees to be responsible for his or her own legal fees and expenses, and each party hereby agrees to waive any claim for alimony, alimony pendente lite, counsel fees, expenses or costs, except for the specific provisions set forth in Paragraph 4.2 above. 6,3 Mutual Release. Husband and Wife each do hereby mutually remise, release, quitclaim, and forever discharge the other and the estate of such other, for all times to come and for all purposes whatsoever, of and from any and all right, title and interest, or claims in or against the property (including income and gzJn from property hereafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situate, which he or she now has or at any time hereafter may have against such other, the estate of such other, or any part thereof. whether arising out of any former acts, contracts, engagements, or liabilities of such other as by way of dower or curtesy, or claims in the nature of dower or curtesy or widow's or widower's rights, lamily exemption, or similar allowance, or under the inlestate laws, or the right to take against the spouse's Will; or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse 10 participate in a deceased spouse's estate, whether arising under the laws of (a) Pennsylvania, (b) any state, commonwealth or territory of the United States, or (c.) any other country, or any rights which either ,party may have or at any time hereafter have for past, present, or future support or maintenance, alimony, alimony pendente lite, counsel fees, costs or expenses, whether arising as a result of the marital relation or otherwise, except and only except, all rights and agreements and obligations of wbatsoever nature arioins or which may arise under this Agreement or for the breach of any thereof. It is the intention of Husband and Wife to give to each other by execution of this Agreement a full, complete, and general release with respect to any and all property of any kind or nature, real or personal, not mixed, which the other now owns or may hereafter acquire, except and only except, all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof. It is acknowledged that Wife has not secured detailed infonnation of Husband's possible or prospective inheritance from the estate of his late father who passed away after the parties' separation. 6,4 Warranties. Each party represents that they have not hereto fore incurred or contracted for any debt or liability or obliga!ion for which the estate of the other party may be responsible or liable, except as may be provided for in this Agreement. Each party agrees to indemnify or hold the other party hannless from and against any and all such debts, liabilities or obligations of every kind, including those for necessities, except for the obligations arising out of this Agreement. Husband and Wife each warrant , covenant, represent and agree that each will, now and at all times hereafter, save harmless and keep the other indemnified from all debts, charges and liabilities incurred by the other after the execution date of this Agreement, except as is otherwise specifically provided for by the terms of this Agreement and that neither of them hereafter incur any liability whatsoevr.r for which the estate of the other may be liable. 6,5 No waiver or modification of any of the terms of this Agreement shall be valid unless in writing and signed by both parties and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 6,6 Husband and Wife covenant and agree that they will forthwith execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper implementation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry fully and effectively the terms of this Agreement. 6.7 This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of execution of this Agreement. 6,8 This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 6.9 This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties other than those expressly set forth herein. 6,10 SeverabUltv, If any term, condition, ch.use, section. or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause, or provision shall be stricken from this AgreClment, and in all other respects, this Agreement shall be valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his or her obligation under anyone or more of the articles and sections herein shall in no way void or alter the remaining obligations of the parties. 6.11 It is specifically understood and agreed that this Agreement constitutes an equitable distribution of property, both real Ilnd personal, which was legally and beneficially acquired by Husband and Wife, or either of them, during the marriage as contemplated by the Divorce Code of the Commonwealth of Pennsylvania. 6.12 Disclosure. The parties each warrant and represent to the other that he or she has made a full and complete disclosure to the other of all assets of any nature whatsoever in which party has an interest, of the sources, and amount of the income of such party of every type whatsoever, and all other facts relating to the subject matter of this Agreement. 6.13 EnforceabUltv and Consideration. This Agreement shall survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties; and any independent action may be brought, either at law or in equity, to enforce the terms of the Agreement by either Husband or Wife until it shall have been fully satisfied and performed. The consideration for this contract and agreement is the mutual benefits to be obtained by both the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained in stipulated, confessed, and admitted by the parties, and the parties STEPHEN W. POVILAITIS, IN TilE COURT Of' COMMON PLEAS Plaintiff : CUMDERLAND COUNTY. PENNSYLVANIA VS. : CIVIL DIVISION KIEU LANA POVILAITIS, : NO. 96-1247 CIVIL TERM Defendant PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record. together with the fOllowing information to the court for entry of a divorce decreel 1. Ground for divorce: irretrievable breakdown under 53301(c) II'SlC4)c~)c of tho'l Divorce Code. (Strike out inapplicable sect iun) , 2. Date and manner of service of the complaintl of SerVice by counsel for the Defendant on j}7t, r( j, By Acceptance J <; h'<) ~ 3. Complute either paragraph (a) or (bl. (a) Date ot execution of the affidavit of consent required by SJ301(c) of the Divorce Code: by plaintiff July 2. 1997 by de fendant Jul y 2, .1997 (b)(ll Date of execution of the affidavit required by ~3301(dl of the Divorce Codel ___: (2) Date of filing and service of the plaintiff's affid~vit upon the ro'lspondentl 4. Related claims pending: blf"'\n~ 5. Complete either (a) or (bl. (a) Date and manner of se~1ce of the notice of intention to file praecipe to tr~nsmit rucord. a copy of which is attached: ______ (b) Date plaintiff's filed with the Prothonctary: Date defendant's filed with the Prothonotary: N/A Waiver of Notice in 53301(c) Divorce was July 3, 1997 Waiver of Notice in 53301(c) Divorce was July 3. 1997 \ Atto or (PIa ntiff)(Defendant) , 1.----"...-" r'~ -' ...:1 " \_: - 11.1 (~ I" ,. c,' , , Cl .. , , ,.: .. : \ ,-. .. \..., " '..J ..) :t.... 'j> *~ ..... .~ ) ~, "'" .J '" '. .. 'j { ~~ - "....... ... ~ ....... <:;-- ~; ) ....::j !.j H)W ~, ~ ,<" f'f't..... '\'<:t:: ~ I" . " :'1 - r<" -. . ' 1"-1 e. !i ,~" 1;- VI 'J .~ , , C" r"- ~ '" ".;;, ":.;,) ~~ ,. , , It) ~ ..:.) l._ -...!,) - -- -.... ~ ~ ~~ ~I ~ .~ ~~I ~~S ~ ~d~! .... .... 'j .~ . III Ul"" ....e. ~ ~ , 3 I " , , In > I ... ui2l .... f; .... :s ~ ~ Ul III .. ~ $ - J ... ('1 U j III 0 o , ....... Ul ~ ... Ul1~< cl: P ': ... z :t ~ IoU 1I:r: '" III 0 ~ J - I: ~ .. lI. < Z,j !!: 8 II: OJ t.') ~ o ~ ~ ~ ::> ~ .... :<: . I. . - ~ 0 .. OJ ..... ..- ~ o In < U1 Z .. U1 - Ii .. ~ .. ~ :IE :> - z .. :> ~ .. In.. .. o .. Z .. .. ~ ... z U STEPHEN W. POVILAITIS, Plaintiff IN THE COURT or COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION 96- I 247 IN DIVORCE - LAW .. .., L u 4..1:: T~ KIEU LANA POVILAITIS, Defendant NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you tail to do so, the case will proceed without you and a decree in divorce or annulment may be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counselinq. A list of marriage counselors is available in the Office of the Prothonotary at Cumberland County Courthouse, carlisle, Pennsylvania l7013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF MARITAL PROPERTY, LAWYER'S FEES, OR EXPENSES BEFORE A DIVORCE IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAXE THIS PAPER TO YOUR LAWYER AT OnCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 240-6200 va. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 96- iJ '/ / ,.'"... I.',,~ STEPHEN W. POVILAITIS, Plaintiff KIEU LANA POVILAITIS, Defendant IN DIVORCE COMPLAIHT IN DIVORCB comrr I 1. Plaintiff is stephen W. Povilaitis, an adult individual currently residing at 200 TAMMC CMR 429, Box 1106, APO AE 09054. 2. Defendant is Xieu Lana Povilaitis, an adult individual currently residing at 23l East King street, CUmberland County, Pennsylvania. 3. Defendant is a bonafide resident of the Commonwealth of Shippensburg, Pennsylvania and has been so for at least six months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on April 11, 1975 in Saigon Thu Duc, Vietnam. 5. There have been no prior actions for divorce or annulment between the parties. 6. The Plaintiff is a member of the United states Armed Forces or its Allies. 7. Plaintiff has been advised of the availability of counseling and the right to request that the Court requires the parties to participate in counseling. Knowing this, Plaintiff does not desire that the Court require the parties to participate in counseling. 8. Plaintiff and Defendant are citizens of the United States of America. 1 . . STEPHEN W. POVILAITIS, Plaintiff IN THE COURT OF COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA . . CIVIL ACTION - LAW 96- /1'/ I CIVIL TERM IN DIVORCE vs. KIEU LANA POVILAITIS, Defendant NOTICE TO THE DEFENDANT If you wish to deny any of the statements set forth in this affidavit, you must file a counter-affidavit within twenty days after this affidavit has been served on you or the statements will be admitted. PLAINTIFF'S AFFIDAVIT UNDER SECTION 330l(d) OF THE DIVORCE CODE l. The parties to this action separated in December 1993 and have continued to live separate and apart since that time. 2. The marriage is irrwtrievably broken. 3. I understand that I may lose rights concerninq alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. I verify that the statements made in this affidvait are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.c.S., section 4904 relating to unsworn falsification to authorities. Date: 2~ fel] I'I~{ . ~c;;J / . //~;; -/ STEPHE . POVILAITIS '- "'/ ;1; (0. I II: : ( . ~:ii': '." C.,: U'I' L'll - " . , ... r- . , l..l G~ (.) ',- "I i." , i '. I'l " f;.. -.-\ !'.. c. 1 (i I (, " C:. I. ~. I . , t:. . .. 1 , r-- <....' I..' U '. ~EPARATION AND PROPERTY SETTLEMENT AGREEMENT THIS AGREEMENT made this ;;) IA,~ day of } 4 ,1997, by and between STEPHEN W, POVILAITIS, of200 TAMMC, CMR429, Box 1106, APO AE (hereinafter referred to as "Husband"), AND K. LANA POVlLAITIS, of 231 East King Street, Shippensburg, Cumberland County, Pennsylvania (hereinafter referred to as "Wife"). WITNESSETH: WHEREAS, Husband and Wife were lawfully married on April II, 1975. in Saigon Thu Duc, Vietnam. WHEREAS, Wife is a resident of the Commonwealth of Pennsylvania with Husband claiming Pennsylvania as his legal residency during his assignment overseas as a federal civilian employee in the Country of Germany. WHEREAS, certain differences have arisen between the parties hereto which have made them desirous ofliving separate and apart from one another; and WHEREAS, Husband and Wife desire to settle and determine certain of their marital rights and obligations, and make an equitable distribution of their marital property, determine their rights to alimony and support and any other matters which may be considered under the Domestic Relations Code; and WHEREAS, it is the intention and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other and to settle all financial and property rights between them; and WHEREAS, the parties hereto have mutually entered into an Agreement for the division of their jointly owned assets, the provisions for the liabilities they owe, and provisions for the resolution of their mutual differences, after both have had full and ample opportunity to consult with attorneys of their respective choice, the parties now wish to have that agreement reduced to writing. NOW, THEREFORE, the parties hereto in consideration of the mutually made and to be kept promises set forth hereinafter and for other good and valuable consideration, and intending to be legally bound and to legally bind their heirs, successors, assigns, and personal representatives, do hereby covenant, promise and agree as follows: ARTICLE I SEPARA TION 1,1 It shall be lawful for Husband and Wife at all times hereafter to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit free from any control, restraint, or interference, direct or indirect, by each other. Neither party shall molest the other or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. The foregoing provision shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness of the causes leading to them living separate and apart. ARTICLE II DIVORCE 2,1 This Agreement is not predicated on divorce. It is specifically understood and agreed by and between the parties hereto that each of the said parties does hereby warrant and represent to the other that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided, however, " that nothing contained in this Agr.:ement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; not to prevent either party from defending any such action which has been, may, or shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, convenanted, and represented by Husband and Wife, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant, and representation is made for the specific purpose of inducing Husband and Wife to execute the Agreement. Husband and Wife each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal, or for any reason whatsoever of public policy, unenforceable in whole or in part. Husband and Wife do each hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever by estopped from asserting any illegality or unenforceability as to all or any part of this Agreement. 2,2 It is further specifically understood and agreed that the provision of this Agreement relating to the equitable distribution of property of the parties are accepted by each party as a final settlement for all purposes whatsoever. Should either of the parties obtain a decree, judgment or order of separation or divorce in any other state, country, or jurisdiction, each of the parties to this Agreement hereby consents and agrees that this Agreement and all its covenants shall not be affected in any way by any such separation and divorce. 2.3 This Agreement shall survive any decree in divorce and shall be forever binding and conclusive on the parties. It is understood by and between the parties that this Agreement shall be incorporated into any decree, divorce or separation, but it shall not be deemed merged in such decree. , ' ARTICLE 11/ I=QUlTABLE DISTRIBUTION OF MARITAL PROPERTY 3.1 The parties have attempted to divide their marital property in a manner which conforms to the criteria set forth in the Pennsylvania Domestic Relations Code, and taking into account the following considerations: the length of the marriage; the prior marriages of the parties; the age, health, station, amount and sources of income, vocational skills, employability; estate, liabilities, and needs for each of the parties; the contribution of one party to the education, training or increased earning power to the other party; the opportunity of each party for future acquisition of capital assets and income; the sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation of marital property, including the contribution of a party as a homemaker; the value of the property set apart to each party; the standard ofliving of the parties established during their marriage; the economic circumstances of each party, including federal, state and local tax ramifications, at the time of the division of the property is to become effective; and whether the parties will be serving as the custodian of any dependent minor children. 3,2 The division of existing marital property is not limited to the parties to constitute in any way a sale or exchange of assets and the division is being effected without the introduction of outside funds or other property not constituting marital property. The division of property under this Agreement shall be in full satisfaction of all rights of equitable distribution of the parties. 3.3 Per.oual ProDertv. The parties acknowledge that they have divided their personal property, tangible and intangible, to their mutual satisfaction. Panies further acknowledge that they have the r.asl1, accounts, or other tangible or intangible property in their possession that they wish to have and neither will make any claim whatsoever against the other party for any other items of personal property or assets that are in other party's possession. 3,4 Life lu.urauce, Each party agrees that the other party shall have sole ownership of any life insurance policies owned by the other party. Each party shall have the right to borrow against, cash in policies, change beneficiaries, and exercise any other incidents of ownership of the respective policies free of any right or claim by the other party. Each party agrees to sign any documents necessary to waive, relinquish or transfer any rights in such policies to the respective pany who presently owns such policies. 3.S Sub.eaueutlv Acauired ProDert? Husband and Wife agree to waive and relinquish any and all right that he or she may now have or hereafter acquire in any real or tangible personal property subsequently acquired by the other party. Husband and Wife specifically agree to waive and relinquish any right in such property that may arise u a result of the marriage relationship. 3,6 Real E.tate. The parties are the joint (\wners of real estate located at 231 East King Street, Shippensburg. Cumberland County, Pennsylvania Husband shall execute a Special Warranty Fee Simple Deed conveying all of his right, title and interest in the aforesaid real estate to Wife From the time of execution of this agreement forward, Husband shall make no additional claim of any nature whatsoever relative to any legal or equitable interest in the aforesaid real estate. Wife shall have prepared and presented to Husband, through counsel, a deed for execution Husband shall execute the deed within fifteen (15) days of receipt , The panies further acknowledge that this real estate encumbered with a mortgage in the parties' joint names. From the date of execution of this Agreement forward, Husband shall be solely and exclusively responsible for the payment of the mortgage that is due and owing on the aforesaid property and shall continue making monthly payments until the mortgage is paid in full. Husband shall pay the aforesaid mortgage in full within thirty (30) days of execution of this Agreement by Wife. Husband shall indemnify Wife and hold her hanniess from and against any demands for payment or collection activity of any nature whatsoever relative to the sum due on the mortgage on the aforesaid property. Except for the real estate referenced herein, the parties acknowledge that they do not have any legal or equitable interest in any other real estate. 3.7 Pension. Retirement. Profit.SharulI[, Wife shall waive, relinquish and transfer any and all right, title and interest she has in Husband's pension through his employment with the United States Government. Wife acknowllldges that Husband does have an employment benefit available to him through his employment with the United States Government and will execute any documents necessary to waive her interest in these retirement accounts of whatever nature, but not limited to the Federal Employee Retirement System Plan (FERS), the Civil Service Retirement System Plan (CSRS), the Thift Savings Plan, or any other retirement or pension plans made available to Husband. Wife hereby waives, relinquishes and transfers any and all right, title and interest she has in the aforesaid retirement accounts, as well as any other such accounts that Husband may have in his individual name or may have been secured through his present or prior employment. Husband shall waive, relinquish and transfer any and all right, title and interest he has in any pension, profit-sharing or retirement accounts secured by Wife. Husband so waives, relinquishes and transfers any and all right, title and interest he has in any such retirement account, including any individual accounts or any accounts or benefit plans that may have been secured through Wife's present or prior employment. , 3.8 Vehicles, The parties, since their separation, have already distributed ownership and possession of any vehicles that were secured by them during their marriage Each party shall retain sole and exclusive ownership and possession of the vehicle presently in their possession. In the event it is necessary to execute any title documents to transfer ownership to the party in possession, the party who must transfer their ownership interest shall execute any documents presented to them within fifteen (I S) days of receipt and shall deliver those executed documents to the party who is securing ownership of the vehicle. 3.9 Intanl[ible Personal Provertv. The parties have already transferred or waived rights and interests in other intangible personal property, including their various bank accounts, credit union accounts and the like. Neither party will make any claim of any nature whatsoever against the other relative to financial accounts or other investments or intangible personal property that has already been retained by the other party. ARTICLE IV ALIMONY, ALIMONY PENDENTE LITE. SPOUSAL SUPPORT, CHILD SUPPORT AND MAINTENANC€ 4,1 The parties acknowledge that they are parties to an Order of Court entered in the Cumberland County Court of Common Pleas, Domestic Relations Section, to DR #23,107 or No. 921 S 1994 requiring the Husband to meet certain financial obligations for the support of his minor child, JOHN PAUL POVILAITIS, born July 12, 1982. The parties shall continue to be guided by this Order and the dictates of the law in the Commonwealth of PeMsylvania as implemented by the Cumberland COllnty Domestic Relations Office relative to child support. 4,2 The parties agree that from the time of execution of this Agreement forward, Husband shall continue to make alimony payments to Wife in the amount of ONE THOUSAND ONE HUNDRED FOURTEEN and 50/100 ($1,114.50) DOLLARS per month for a set period of twenty-four (24) months. This shall be Husband's sole alimony obligation to Wife and he shall not be obligated to provide any additional type of spousal SUPPOJ1, maintenance or alimony. This amount may be collected through the Cumberland County Domestic Relations Office as Wife deems appropriate or payment can be made directly by Husband to Wife. The determination of whether payments are made directly or through the Cumberland County Domestic Relations Office shall be in Wife's sole discretion In the event Wife uses the services of the Cumberland County Domestic Relations Office for collection of the alimony amount agreed upon herein, she shall so notify the Domestic Relations Office that effective with the June 1997 payment made by Husband under the Domestic Relations Order docketed to DR #23,017, No. 921 S 1994, shall be considered alimony under the terms of the within Agreement. In the event Wife agrees to take alimony payments directly from Husband and not use the services of the Cumberland County Domestic Relations Office, she shall immediately notify the Cumberland County Domestic Relations Office that the spousal support pOJ1ion of the aforementioned Order requiring the payment of ONE THOUSAND ONE HUNDRED FOURTEEN and 50/100 ($1,114.50) DOLLARS per month shall cease effective with the month of June 1997. Husband's agreement to pay ONE THOUSAND ONE HUNDRED FOURTEEN and 50/100 ($1,114.50) DOLLARS per month in alimony shall be non-modifiable. All other provisions of the Order ofCoUJ1 dated November 3, 1995 relative to the payment of child SuppOJ1, shall remain in full force and effect. All provisions of the Order of Court dated November 3, 1995 relative to spousal support shall be vacated. In the event Wife determines that she wishes to have the Cumberland County Domestic Relations Office continue to receive payments of alimony in the amount set forth above, this shall be the sole benetit made available to Wife through the Cumberland County Domestic Relations Office relative to Wife's support and shall be Husband's sole obligation relative to Wife's support. 4,3 The parties herein acknowledge that except for the provisions set forth in Paragraph 4.2 above, they have each secured and maintained a substantial and adequate fund with which to provide themselves sufficient resources to provide for their comfort, maintenance and support in the station of life in which they are accustom. Husband and Wife do hereby waive, release and give up any rights they may respectfully have against the other for alimony, support or maintenance except as provided for in Paragraph 4. I above. 4,4 Except as specifically set forth herein, Husband and Wife specifically waive, release and give up any and all rights for alimony, alimony pendente lite and spousal support pursuant to Chapter 31 of the Domestic Relations Code. ARTICLE V DEBTS OF THE PARTlE~ 5,1 Each party represents to the other that except as otherwise specifically set forth in this Agreement, there are no major outstanding obligations of the parties; that since the separation neither party has contracted for any debts for which the other will be responsible and each party indemnities and holds hannless the other for all obligations separately incurred or assumed under this Agreement. . ARTICLE VI MISCELLANEOUS PROVISIONS 6.1 Advice of Counsel. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, being Bradley L. Griffie, Esquire for Husband and Wayne F. Shade, Esquire for Wife. The parties acknowledge that they have either received independent legal advice from counsel of their own selection, that they fully understand the facts and have been fully informed as to their legal rights and obligations or otherwise understand those legal rights and obligations. They acknowle:dge and accept that this Agreement is, in the circumstances, fair and equitable, that it is being entered into freely and voluntarily, after having received such advice and with such knowledge that execution of this Agreement is not the result of any duress or undue influence, and further that it is not the result of the collusion or improper or illegal agreement or agreements. 6.2 Counsel Fees, Each party agrees to be responsible for his or her own legal fees and expenses, and each party hereby agrees to waive any claim for alimony, alimony pendente lite, counsel fees, expenses or costs, except for the specific provisions set forth in Paragraph 4.2 above. 6.3 Mutual Release, Husband and Wife each do hereby mutually rer.1ise, release, quitclaim, and forever discharge the other and the estate of such other, for all times to come and for all purposes whatsoever, of and from any and all right, title and interest. or claims in or against the property (including income and gain from property hereafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situate, which he or she now has or at any time hereafter may have against such other, the estate of such other, or any part thereof, whether arising out of any former acts, contracts, engagements, or liabilities of such other as by way of dower or curtesy, or claims in the nature of dower or curtesy or widow's or wioower's rights, family exemption, or similar allowance, or under the intestate laws, or the right to take against the spouse's Will; or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of (a) Pennsylvania, (b) any state, commonwealth or territory of the United States, or (c.) any other country, or any rights which either party may have or at any time hereafter have for past, present, or future support or maintenance, alimony, alimony pendente lite, counsel fees, costs or expenses, whether arising as a result of the marital relation or otherwise, except and only except, all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof It is the intention of Husband and Wife to give to each other by execution of this Agreement a full, complete, and general release with respect to any and all property of any kind or nature, real or personal, not mixed, which the other now owns or may hereafter acquire, except and only except, all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any thereof It is acknowledged that Wife has not secured detailed information of Husband's possible or prospective inheritance from the estate of his late father who passed away after the parties' separation. 6.4 Warranties, Each party represents that they have not hereto fore incurred or contracted for any debt or liability or obligation for which the estate of the other party may be responsible or liable, except as may be provided for in this Agreement. Each party agrees to indemnifY or hold the other party harmless from and against any and all such debts, liabilities or obligations of every kind, including those for necessities, except for the obligations arising out of this Agreement. Husband and Wife each warrant , covenant, represent and agree that each will, now and at all times hereafter, save harmless and keep the other indemnified from all debts, charges and liabilities incurred by the other after the execution date of this Agreement, except as is otherwise specifically provided for by the terms of this Agreement and that neither of them hereafter incur any liability whatsoever for which the estate of the other may be liable. 6,5 No waiver or modification of any of the terms of this Agreement shall be valid unless in writing and signed by both parties and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 6.6 Husband and Wife covenant and agree that they will forthwith execute any and all written instruments. assignments, releases, satisfactions, deeds. notes or such other writings as may be necessary or desirable for the proper implementation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry fully and effectively the terms of this Agreement. 6,' This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of execution of this Agreement. 6,8 This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 6.9 This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties other than those expressly set forth herein. 6,10 SevenbWtv. If any term, condition, clause, section, or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause, or provision shall be stricken from this Agreement, and in all other respects, this Agreement shall be valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his or her obligation under anyone or more of the articles and sections herein shall in no way void or alter the remaining obligations of the parties. 6,11 It is specifically understood and agreed that this Agreement constitutes an equitable distribution of property, both real and personal, which was legally and beneficially acquired by Husband and Wife, or either of them, during the marriage as contemplated by the Divorce Code of the Commonwealth of Pennsylvania. 6.12 Daclo.me, The parties each warrant and represent 10 the other that he or she has made a full and complete disclosure to the other of all assets of any nature whatsoever in which party has an interest, of the sources, and amount of the income of such party of every type whatsoever, and all other facts relating to the subject matter of this Agreement. 6.13 Enforceability and Consideration. This Agreement shall survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties; and any independent action may be brought, either at law or in equity, to enforce the terms of the Agreement by either Husband or Wife until it shall have been fully satisfied and performed. The consideration for this contract and agreement is the mutual benefits to be obtained by both the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained in stipulated, confessed, and admitted by the parties, and the parties STEPHEN w: POVIUITIS, Plaillliff vs, [(JEU LANA POVIUITIS, Defmdalll : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COllN7Y. PENNSYLVANIA : CIVII.AC11ON.I.AW : : 96-12-17 CIVIl. TERM : IN DIVORCE MOTION FOR APPOINTMENT OF MASTER Slephen W. Povilailis, moVO!s Ihe courllo appoilll a ma.vler wilh res peel to Ihe followitlg claim..: (X) Divorce ( ) Atltlulmelll (X) Alimony (X) AlimotlY PetlJetlle Lite atld in support of the moliotl ,vtale.v: ( X) Di.vtribuliotl of Property ( ) Supporl (X) CoulLvelfees (X) COSls and Expemes I, Discovery is complele as to the claim(s) for which Ihe appoitltmelll of a master is required 2, The Vefetldatll has appeared itl Ihe acliotl Ihrough her al/omey, Wayne F. Shade, F.sqllire, 3. The slalulory groutld(s)for the divorce are Secliotl 330lc alld 3301(d). 4. Delele Ihe illapplicable poragraph(s): . b, All agreemelll has beell reached wilh res peel to Ihe followillg claims: NOlie, c. The aclioll is cOlllesled wilh re.vpecllo the following claims: All of Ihe above excepl: COIISeIlIIO Divorce. 5. The aclioll does 1101 illvolve complex issues of law or facl. 6. The hearitlg is expected to lake 2 days. 7. Additional illformatioll, if ~nllo Ihe molion: None Dale: <' I, I ~ '7 -- W ORDER APPO TlNG MASTER ._' -1,NDNOW )h/\Ll..-Lj-- L~_, 19'LZ b- . p-'c .~- PJ.!K.f{~. ~ Esquire, is appoinled masler wilh respecllo Ihe following claims: !.., _, . ) I'I-"'-~. ((,: (L.Lv--. . BY !'HE cOllla: fkL.' (l_u~~_Ifl-// rJ. ? ::,... C r-- ~. l.Il :;)- ,~ j.--..Jl ,..."'" -.. L"") .- i+ '# ,- . ~ ~~ i " HJ~ , t':l ( >. r- oo (.::1 ') " (' ,:-! I ' II , ( - ..I) ~L. ~ ,..., ~ ~~ ~~ ... ll<U1 ~ ~ j j j ~~ il . g en . ~ll< ~ H en I-< H rI} !c J :l H I-< ~ u~~~ :i:t: H~ iio: ~ ,. :ill III !2 ~ > H-.l H~ 3: ~ .t I H >~ 0 ~ ~ ~ o U Oll >ll U ~UZ r:>.t-.l OQl ~ < ~ :~ O~ al r:>.t..... is '" H.;tro:l ..... , r~ '" 8..~~:.l ~r:>.t > ~ I;,) <'0 Z Ill: ! .0> ~ o-lCl'\H ~ H Q r:>.t 0 >. ~ r...l ~ Z HOZ >-! .... Ul r~ Ll: _:1 f~. l!le. O. .., I..." -.. I =, ~ U,. , (.1l I L.lI'" a!l: (,- f _L " r-- .., 0 (j'" I':'.J