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HomeMy WebLinkAbout97-00292 . ~ ~ VI > l" - .- B \ "'-\ \ -,,' -" - . ~I \ c--" ~l . () < .,. ., " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JENNIFER A. WILEY PLAINTIFF No. 97-292 Civil : CIVIL ACTION - LAW VS. LEE B. WILEY, III DEFENDANT : IN DiVORCE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT This Agreement made this 3(fday of rYln.rc h . 1998, by and between Jennifer A. Wiley of York County, Pennsylvania, party of the first part. hereinafter referred to as "Wife" and Lee B. Wiley, III of Cumberland County, Pennsylvania, party of the second part, hereinafter referred to as "Husband". WITNESSETH: WHEREAS. Husband and Wife were married April 22, 1995; and WHEREAS, there is one child born of this marriage: Tyler J. Wiley. born August 28, 1995; and WHEREAS, Husband and Wife are residents of the Commonwealth of Pennsylvania, and have been so. for at least the past six months; and WHEREAS, this Court has competent jurisdiction in the above-captioned divorce action by virtue of the parties' domicile; and WHEREAS, certain differences have arisen between the parties hereto and as a consequence, they have lived separate and apart since July 2. 1996; 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, support and other matters which may be considered under the Divorce 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 provision for the liabilities they own, and provision for the resolution of their mutual differences, after both have had fun 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 SEPARATION 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 as 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 the other to cohabit or dwell with him or her by any legal or other proceedings. The foregoing provisions 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 and 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 Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, whether absolute or otherwise, upon just, legal and proper ground, nor to prevent either party from defending any such action which has been, mayor shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, covenanted, 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 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 be estopped from asserting any illegality or unenforceability as to all or any part of this Agreement. The parties acknowledge that a Divorce action has been filed in the Court of Common Pleas of Cumberland County, Pennsylvania at No, 97-292. The parties agree that they have executed Affidavits of Consent in the aforementioned matter. 2.2 It is further specifically understood and agreed that the provisions 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, and that nothing in any such decree, judgment, order or further modification or revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both of the parties should remarry, it being understood by and between the parties that this Agreement shall sUlvive and shall not be merged into any decree, judgment or order of divorce or separation. 2.3 It is specifically agreed that a copy of this Agreement may be incorporated by reference into any divorce, judgment or decree if or whenever sought by either of the parties hereto, such incorporation, however, shall not be regarded as a merger, it being the intent of the parties to permit this Agreement to survive any such judgment or decree. ARTICLE ill 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 Section 3502 of the Pennsylvania Divorce 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 skill, employability, estate, liabilities, and needs for each of the parties, the contribution of one party to education, training or increased earning power of 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 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. 3.2 The division of existing marital property is not intended by the parties to constitute in any way a sale or exchange of assets. The division of property under this Agreement shall be in full satisfaction of all rights of equitable distribution of the parties. with such knowledge that execution of this Agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agreements. Counsel Fees. Husband and Wife agree that each will pay their respective attorneys fees related to this divorce action. ARTICLE VII MISCELLANEOUS PROVISIONS 7.3 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 rights, 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, or whatever nature and wheresoever situate. which he or she now has or at any time hereafter against such other, the estate of such other, or any part thereof, whether arising out of any former acts, contacts. engagements, or liabilities of such other as by way of dower or curtsey. or claims in the nature of dower or curtesy or widow's or widower's rights, family exemption, or similar allowance. or under the intestate law~, or the right to take against the spouse's estate, whether arising under the laws of (a) Pennsylvania. (b) any state, commonwealth or territory of the United States. or (c) any 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 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, or 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. 7.4 Release of Testamentary Claims. Except as provided for in this Agreement, each of the parties hereto shall have the rights to dispose of his or her property by Last Will and Testament, or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons who would have become entitled hereto as if the descendant had been the last to die. This provision is intended to constitute a mutual waiver by the parties of any rights to take against each other's last Wills under the present or future laws of any jurisdiction whatsoever and is intended to confer third party beneficiary rights upon the other heirs and beneficiaries of each other party hereto. Either party may. however, make such provisions for the other as he or she may desire in and by his or her Last Will and Testament. Each of the parties further covenants and agrees that he or she will permit any Will of the other to be probated and allow administration upon his or her personal. real or mixed estate and effects to be taken out by the person or persons who would have been entitled to do so had Husband or Wife died during the lifetime of the other and that neither Husband nor Wife will claim against or contest the Will and the estate of the other. Each of the parties hereby releases. relinquishes and waives any and all rights to act as executor or executrix or administrator or administratrix of the other party's estate. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators and assigns. that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators, or assigns, for the purpose of enforcing any of the rights relinquished under this Paragraph. 7.5 Warranties. Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligations for which the estate of the other party may be responsible or liable, exc.ept 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 each of them, including those for necessities, except for the obligations arising out of this Agreement. Husband and Wife each warrants, covenants, represents and agrees that each will, now 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. 7.6 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 nature. 7.7 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. 7.8 This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of the execution of this Agreement. 7.9 This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 7.10 , . , 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. 7.11 Severability. 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 any or more of the articles and sections shall in no way void or alter the remaining obligations of the parties. 7.12 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. 7.13 Disclosure. The parties warrant and represent that they have made a full disclosure of all assets prior to the execution of this Agreement. 7.14 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 of the parties hereto and the covenants and agreements of each of the parties of the other. The adequacy of the consideration for all agreements herein contained and stipulated is confessed and admitted by the parties, and the parties intend to be legally bound hereby. In the event either party breaches the aforesaid Agreement and it is determined through appropriate legal action that the alleged party has so breached the agreement the breaching party shall be responsible for any and all attorneys' fees as well as costs and expenses associated with litigation incurred by the non-breaching party to enforce this Agreement against the breaching party. ..~,Wlk; Ie i r A. I Y . L~wJ~ Lee B. Wiley, III '. - -...-.. ....,,~ .- ....'..~,~.._.......-..~,..............,..~ . . '. , f"1 V) " , C] i, -~ I " ""M] -ry , OJ , I '! ,-:; <.: , ,:) .. . -:) , r -. r , " . -, 11') - , " ;..', ,- "oJ ~: j ~; (:OJ -; IN THE COURT Of COMMON PLEAS Of CUMUEltLANO COUNTY, PENNSYLVANIA CIVIL ACTION. LAW Jennifer A. Wile)', IljJ.SH-9U97 PlainlilT No 1J7-292-Cinl v. Lee B. Wile)'. 2US-SH.2IH7 Defendant PRAECIPE TO TRANSMIT RECORD TO THE PROfHONOT ARY: Transmitlhe record, together with the follolling information, 10 the Coull for enl!)' of a divorce decree: 1. Ground for Divorce: Irretrie\'able breakdown under Section 33UI(c) of the Dil'orce Code. 2, Dale and manner of sell' ice of the Complaint: Janual')' 17, 1997 l'la eerllned mall. 3. a) Date of execution of the affidavit of cons en I required b)' Section 33Ul(c) of the Divorce Code: b)' PlainlilT: Ma)' \3, 1997, hy Defendant: June 5.1997. b) Date of execution of Plaintilfs Affidavit required b)' Section 33Ul(d) of the Divorce Code: N/A and date of sclI'ice of Plainlilfs Affidavit upon Defendant: N/A. 4. Related claims pending: There are no related claim. pendln~. S. Dale and manner of Sell'ice of Notice of Intention 10 liIe Praecipe 10 Transmit record. a copy of which is allached if the decree is to be enlered under scction 33ul(d) of the Dil'oree Code: N/A. (" Date and manner of Service of Notice of Intention to liIe PrJecipe to Transmit reeord. a copy of which is allached. iflhe decree is to be entered under Section 33UI(d) of the Divorce Code: N/A or date of the execution of Waiver of Notice of Inlent: PlaintilT: Ma)h \3, 1997 and date ofming of waiver: June \3, 1997, Defendanl: June S. 1997, and dale of filing of waiver: Jul)' J, 1997. Respectfully submilled. 4:~ Keith U. - rmon sq, Allomey for PlaintilT DeArmond & DeArmond 2KI"l Mnrket Slrcet Camp Hill, PA 17UII 7l7-73U.')W4 Supreme Ct. \.D. No. SKK7K n '.') ., ," ~() ','1 ~ -, ~' -" f;. 'J ,:"0 '1'- I ,n G'\ l.:l 'h -';'1 ." -... . ~ ;;,-) \ r:" ,ri' , -' .. I :A ,~ ',-.. '" CJ ~. .- -< :t r IN TIlE COURT or COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA Jennifer A. Wiley, Plaintiff No. 97-292 Civil v. CIVIL ACTION - LAW Lee B. Wiley, III, Defendant IN DIVORCE AFFIDA VIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on January 17, 1997. 2. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 3. I consent to the entry ofa final Decree of Divorce after service of Notice of Intention to request entry of the decree. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses iff do not claim them before a divorce is granted. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of I g Pa.C.S. Section 4904 relating to unsworn falsification to authorities, Date: 51 kifcn ~n~A.l)JLtLI Jenni r A. W r y, Plaintiff .I p ~ 0 '" -, c.... ~I :.. ~m - 1:' ::2 ." , .., ,~ . w ',) -<-- -J ~t_: -0 c~ J.i,- , :r.: ~(-'. is> (5 ~;. -l of.. ""' ~ =< .- -.. e \D ~ -.I '" ~ .1 ~(:' ~~! Z '~I -?r" ~ J' W ': ~ ;) 0-30":." 1- t;:I.. "'0 ;.;;(~ ::It ' ) ", c;~(. ~ :Sl ,-.( . :-l ::j f"" SS -, .- -;. 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