HomeMy WebLinkAbout97-00613
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WHEREAS, it is the desire of the parties, after long and
careful consideration, to amicably adjust, compromise and settle
all property rights and all rights in, to or against each other's
property or estate, including property heretofore or subsequently
acquired by either party, and to settle all disputes existing
between them, including any and all claims for WIFE'S and/or
HUSBAND'S maintenance and/or for spouse support, alimony pendente
lite, alimony, counsel fees and expenses, custody and equitable
distribution;
WHEREAS, Nadine A. Bailey is represented by Joanne Harrison
Clough, Esquire, and Lawrence J. Bailey is represented by Judith A.
Calkin, Esquire and each party has had the opportunity and in fact
has reviewed this Agreement in its entirety with his or her
respective counsel prior to executing the same; and
WHEREAS, the parties intend this Agreement to be a full and
complete Postnuptial Agreement, providing for the absolute and
final settlement of all their respective marital and property
rights and all claims for spouse support, alimony pendente lite,
alimony, counsel fees and expenses, and equitable distribution of
marital property.
NOW, THEREFORE, for and in consideration of the mutual
benefits to be derived by the parties and intending to be legally
bound hereby, the parties hereby covenant and agree as follows:
1. PERSONAL PROPERTY: HUSBAND warrants and represents to
WIFE, and WIFE warrants and represents to HUSBAND, that they have
effected a fair and equitable division of all marital property of
the parties, and that any and all marital property, except as
expressly provided herein, presently in possession of WIFE shall be
the property of WIFE, and that any and all marital property, except
as expressly provided herein, presently in possession of HUSBAND
shall be the property solely of HUSBAND.
(A) WIFE shall have the sole right, title and interest to the
following personal property:
1. 1993 Ford Taurus Station Wagon: HUSBAND shall
transfer any and all interest he has in said
vehicle to WIFE. WIFE shall assume sole
responsibility for any insurance or other expenses
associated with this vehicle and shall indemnify
HUSBAND and hold him harmless on any such
obligation.
(B) HUSBAND shall have the sole right, title and interest to
the following personal property:
1. GMC Jimmy Truck: WIFE waives any right, title,
claim or interest whatsoever she may have to said
vehicle. HUSBAND shall assume sole responsibility
for any insurance or other expenses associated with
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this vehicle and shall indemnify WIFE and hold him
harmless on any such obligation.
2. RBAL PROPBRTY: HUSBAND and WIFE agree that in
consideration of the other promises and property distribution
provisions set forth in this Agreement, HUSBAND shall transfer to
WIFE any and all right, title and interest he has whatsoever in the
marital residence located at 6402 Cannon Drive, Mechanicsburg,
Cumberland County, Pennsylvania, 17055 in consideration of the
following:
a. WIFE shall assume sole responsibility for and
indemnify and hold HUSBAND harmless on the first mortgage balance
due and owing on the marital residence.
b. WIFE further agrees to refinance the current
mortgage on the marital residence on or before November 21, 1997,
thereby fully releasing and further discharging HUSBAND from any
liability thereon.
c. WIFE further agrees to assume and/or be solely
responsible for and indemnify and hold HUSBAND harmless on two
thirds of the remaining balance of the home equity loan currently
placed as a lien against the marital residence.
HUSBAND agrees to pay one third of the balance of the home
equity loan on said residence on or before November 21, 1997, the
date on which WIFE has scheduled a real estate closing to refinance
the first mortgage on the marital residence.
The parties further agree that WIFE shall be solely
responsible for any real estate taxes or other expenses associated
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with the marital residence and agrees to indemnify HUSBAND and hold
him harmless on any such debt or obligation from the date of
execution of this Agreement. HUSBAND shall sign the deed
transferring his interest in said property to WIFE
contemporaneously with the execution of this agreement.
3. COLLEGE SUPPORT: HUSBAND and WIFE agree that the monies
currently deposited in BELCO Credit Union account no. 177230 are to
be used for the college education expenses of the parties daughter
Jessica. HUSBAND and WIFE further agree that HUSBAND shall not be
responsible for any additional college expenses or education costs
of the parties' daughter.
4. SPOUSAL SUPPORT AND ALIMONY: HUSBAND and WIFE agree that
HUSBAND shall continue to pay to WIFE the sum of $ 650.00 per month
in spousal support to WIFE until entry of a final decree in
divorce. HUSBAND and WIFE further agree that HUSBAND shall
continue to pay said sum of $ 650.00 per month to WIFE as alimony
from the date of entry of the final decree in divorce until
December 31, 2001. HUSBAND further agrees he shall then pay to
WIFE the sum of $500.00 per month alimony until such time as he
retires permanently from any employment. The alimony obligations
set forth in this Agreement shall end in the event of:
a. the death of either party; or
b. upon cohabitation of WIFE; or
c. upon remarriage of WIFE.
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The parties specifically acknowledge that the amount and duration
of said alimony is non-modifiable except in the event that HUSBAND
experiences, through no fault of his own, an involuntary decrease
of 20% of annual gross income from any and all sources. Said 20 %
decrease in earnings of HUSBAND shall be determined as against
HUSBAND'S total gross income for the 1996 tax year.
HUSBAND and WIFE must provide each other in writing of his or
her exact residence, address and telephone number, and must advise
each other of any changes thereof within ten (10) days.
5. BELL ATLANTIC SAVINGS PLAN: The parties acknowledge that
HUSBAND has a savings plan with Bell Atlantic and the marital
portion of said savings plan is the dollar amount that was in said
plan on March 1, 1997, the separation date of the parties. HUSBAND
and WIFE further agree that the marital portion of said savings
plan shall be divided equally between the parties in the form of a
rollover of one half of said amount from HUSBAND's account to an
account to be established by WIFE in her name in a financial
institution of her selection via a Qualified Domestic Relations
Order.
6. PENSIONS: The parties acknowledge that HUSBAND has
acquired a pension with Bell Atlantic during the course of the
parties marriage. HUSBAND and WIFE further agree to equally divide
the marital portion of said pension acquired from the date of
marriage of May 25, 1974 to the date of separation of March 1,
1997. The parties agree that WIFE shall receive her share of the
marital portion of said pension when it goes in to pay status. The
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parties further agree to cooperate in the preparation, execution
and implementation of a Qualified Domestic Relations Order which
will direct Bell Atlantic to equally divide the marital portion of
said pension and pay WIFE's share of said pension directly to WIFE.
HUSBAND shall name WIFE as the irrevocable beneficiary of one half
the value of any death benefit that has accrued on said pension
from the date of marriage to the date of the parties final
separation.
HUSBAND and WIFE further acknowledge that HUSBAND is waiving
any right, title, interest or claim he may have what so ever in any
pension or retirement plan of WIFE. Parties specifically
acknowledge that WIFE has six (6) years in a pension with Camp Hill
High School District but is not vested in said program. HUSBAND
further agrees to waive any claim to his wife's minimal value 401K
with Obermayer or any other pensions or pension rights, vested or
unvested, WIFE may have whatsoever.
7. COUNSEL PEES. COSTS AND EXPENSES: HUSBAND and WIFE agree
to each be responsible for any counsel fees, costs or other
expenses he or she has incurred in the divorce process. HUSBAND
shall not pay any of the counsel fees, costs or expenses of WIFE.
8. DEBTS AND INDEMNIPICATION: HUSBAND and WIFE represent and
warrant to each other that except as provided herein, neither one
has contracted or will in the future contract any debts, charges,
or liabilities whatsoever for which the other party or their
property to their estates shall or may be or become liable or
responsible, will at all times keep each other free, harmless and
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indemnified against and from any and all debts and liabilities
heretofore or hereafter contracted or incurred by the other, except
as expressly provided in this Agreement.
9. INCOMB TAX FILINGS: The parties agree the parties shall
file a joint tax return for the 1997 tax year. The parties further
agree that each will sign any and all documents necessary to
finalize this Divorce action promptly after execution of this
Agreement, and further agree that this Divorce Action shall be
finalized and a Divorce Decree shall be obtained on or immediately
after January 1, 1998. The parties mutually agree to select an
Accountant to prepare the 1997 Federal, State and Local tax returns
and that each party shall meet separately with said Accountant to
prepare and sign said return.
HUSBAND further agrees that he shall pay any and all Federal,
State and Local taxes that may be due for the 1997 joint tax filing
and that WIFE shall receive 100% of any Federal, State or Local tax
refund for the 1997 tax year.In the event of any future federal,
state or local tax audit, HUSBAND and WIFE agree to cooperate in
any audit process and further agree that in the event any taxes,
interest and/or penalties are due for any year the parties filed a
joint return, WIFE shall be responsible for any such tax, interest
or penalty associated with any income earned by her, and that
HUSBAND shall be solely responsible for any tax, penalty or
interest associated with any income earned by him. Each party
agrees to indemnify the other party and hold him or her harmless on
any such obligation.
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10. AFTER ACOUIRED PERSONAL PROPERTY: Each of the parties
shall hereafter own and enjoy , independently of any claims or
rights of the other party, all items of personal property, tangible
or intangible, hereafter acquired by the other party, with full
power to dispose of the same as fully and effectively, in all
respects and for all purposes, as though he or she were unmarried.
11. WAIVER OF ALIMONY PENDENTE LITE: HUSBAND and WIFE agree
that WIFE waives any and all right or claim to alimony pendent lite
in consideration of other promises set forth in this Agreement.
12. TIME OF THE ESSENCE: HUSBAND and WIFE acknowledge that
WIFE has a real estate settlement scheduled for November 21, 1997
and that time is of the essence for the completion of any and all
obligations of HUSBAND and WIFE that must be completed Drior to the
real estate settlement including but not limited to HUSBAND
tendering the monies to pay off his one third of the home equity
loan obligation at or before the time of WIFE's real estate
settlement.
13. MUTUAL RELEASE: Subject to the provisions of this
Agreement, each party has released, discharged and, by this
Agreement, does for himself or herself, and his or her heirs, legal
representatives, executors, administrators and assigns, release and
discharge the other of and form all cause of actions, claims,
rights or demands whatsoever, in law or equity, which either of the
parties ever had, now have, or can have at any time against the
other, specifically including rights or claims to spouse support,
alimony, alimony pendente lite, counsel fees and expenses, and
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equitable distribution of marital property, except for any cause of
action for divorce from the bonds of matrimony and any cause of
action for breach of any provisions of this Agreement.
The parties hereto expressly relinquish and waive any and all
rights that they may have now or in the future to claim
and/or obtain spouse support, alimony pendente lite, alimony,
counsel fees and expenses or equitable distribution of property.
14. ESTATE RELEASE: Except as herein otherwise provided,
each party may dispose of his or her property in any way, and each
party hereby waives and relinquishes any and all rights he or she
may now have or hereafter acquire, under the present or future laws
of any jurisdiction, to share in the property or the estate of the
other as a result of the marital relationship, including without
limitation, dower, courtesy, statutory allowance, widow's
allowance, right to take property under equitable distribution,
right to take in intestacy, right to take against the will of the
other, and right to act as administrator or executor of the other's
estate, and each will, at the request of the other, execute,
acknowledge, and deliver nay and all instruments which may be
necessary or advisable to carry into effect this mutual waiver and
relinquishment of all such interest, rights and claims.
15. SEPARATION: It shall be lawful for each party at all
times hereafter to live separate and apart from the other party at
such place or places as he or she may from time to time choose or
determine fit.
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16. NO INTERFERENCE: Each party shall be free from
interference, authority and control, direct and indirect, by the
other as fully as if he or she were single and unmarried. Neither
shall molest the other, compel or endeavor to compel, the other to
cohabit or dwell with him or her, or to interfere with friendShips,
society or acquaintances with either of the parties hereto may
choose or have from this day forward.
17. DOCUMENTS: Each party shall, at the request of the
other, execute, acknowledge and deliver to the other party any
documents which may be reasonably necessary to give full force and
effect to this Agreement.
18. AGREEMENT AND SUBSEOUENT 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 each shall sign consents to no fault divorce and Waivers of
Notice to Enter Final Divorce Decree contemporaneously with the
execution of this agreement or in a timely fashion after the
statutory ninety day waiting periOd has expired and that each will
sign any other documents necessary to obtain a final decree in
divorce from the court. It is further agreed that counsel for WIFE
shall petition the Court for entry of a Final Divorce Decree after
January 1, 1998.
19. ABSOLUTE AND FINAL SETTLEMENT: The provisions of this
Agreement are intended to consider, determine and distribute all of
the assets of the parties hereto as part of the terms of this
Postnuptial Agreement. This Agreement is intended by the parties
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hereto to be a valid Postnuptial Agreement, providing for the
absolute and final settlement of their respective property rights
and all obligations of spouse support. This Agreement is not
intended to be a mere separation agreement. This Agreement
contains the entire understanding of the parties and there are no
representations, warranties, covenants or promises other than those
expressly set forth in this Agreement.
20. VOLUNTARY EXECUTION AND FAIRNESS OF AGREEMENT: Each
party acknowledges that this Agreement has been entered into of his
or her own violation, with full knowledge of the facts and full
information as to the legal rights, liabilities and the assets of
the other, and that each believes this Agreement to be reasonable
under the circumstances and not the result of any duress or undue
influence.
21. MODIFICATION AND WAIVER: A modification or waiver of any
of the provisions of this Agreement shall be effective only if made
in writing and executed with the same formality as this
Agreement. The failure of either party to insist upon strict
performance of any of the provisions of this Agreement shall not
be construed as a waiver of any subsequent default of the same or
similar nature.
22. SITUS: This Agreement shall be construed and governed in
accordance with the laws of the Commonwealth of Pennsylvania.
23. ENTRY AS PART OF DECREE: It is the intention of the
parties that this Agreement shall survive any action for divorce
which may be instituted or prosecuted by either party and no order,
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judgment or decree of divorce (temporary, interlocutory, final or
permanent) shall affect or modify the financial terms of this
Agreement. This Agreement shall be incorporated with, but not
merge with any such jUdgment or decree of final divorce.
24. BREACH: If either party breaches any provision of this
Agreement, the other party shall have the right, at his or her
election, to sue for damages for such breach, or seek such other
remedies or relief as may be available to him or her, and the party
breaching this contract should be responsible for payment of any
and all reasonable attorney's fees, legal costs and expenses
incurred by the other in enforcing their rights under this
Agreement.
25. BINDING EFFECT: Each of the parties hereto intends to be
legally bound hereby, and this Agreement shall be binding upon
their heirs, personal representatives and assigns of the respective
parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals the day and year first above written, each adopting the
seal following his or her signature as his or her own.
WITNESSES:
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Na~ine A. Bailey
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:
LAWRENCI'; J. BM1.EY, : IN THE COURT OF COHHON PLEAS
Plaint iff :
. CUMBERLAND COUNTY. PENNSYLVANIA
.
.
.
VS. : CIVIL DIVISION
:
: NO. 97-613 CIVIL TERM
NADINE A. BAI1.EY.
:
PRAECIPE TO TRANSMIT RECORD
To the Prothonotery:
Tranlmit the record, together with the tollowing intormation to
the court tor entry of a divorce decree:
1. Ground for divorce: irretrievable breakdown under 5330l(c)
~G~~l) ot the Divorce Code. (Strike out inapplicable section).
2. Date and manner of service of the complaint:
Personal Service Attorney Joanne Il. Clough 2/11/97
3. Complete either paragraph (al or (bl.
(al Data of execution of the affidavit of consent required
by 53301(01 of the Divorce Code: by plaintiff 2/2/98
by defendant 1/26/98
(b) (1) Date of execution of the affidavit required by S3301(dl
of the Divorce Code: : (2) Date of filing and
service of the plaintiff's affid~vit upon the ~~spondent:
4. Related claims pending:
NONE
5. Complete either (a) or (b).
(~) Date and manner of service of the notice of intention to
file praecipe to transmit record, a copy of which is attaChed:
N/A
Waiver of Not.ice in S330l(c) Divorce w~s
(b) Date plaintiff's
filed with the Prothonotary:
Date defendant's
filed with the Prothonotary:
? /1./QA
Waiver of Notice in 53301(c) Divorce was
2/3/98
~~~~
tomey for (Plaintiff)(Defendant)
JudIth A. Calkin
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counseling prior to a Divorce Decree being handed down by the
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WHEREFORE, the plaintiff prays your Honorable Court to
enter a Decree in Divorce from the bonds of matrimony,
Respectfully submitted:
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-Judith A, c:1kin, Esquire
Attorney for Plaintiff
2201 North Second Street
Harrisburg, PA 17110
(717) 238-2312
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LAWRENCE J, BAILEY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
NO. 97-613 Civil
NADINE A, BAILEY,
Defendant
CIVIl, ACTION-DIVORCE
AFFIDAVIT OF CONSENT
1, A Complaint in Divorce under Section 3301(c) of the
Divorce Code was filed on February 6, 1997,
2, The l11clrriage of Plaintiff and D,,!(endant is
irretrievably broken and ninety (90) days have elapsed from the
date of the filing of this Complaint,
3, I consent to the entry of a Final Decree in Divorce
after service of notice of intention to request entry of the
decree,
1 understand that false statements herein ar.e made
subject to the penalties of 18 Pa,C,S, Section 4904, relating to
unsworn falsification to authorities,
DATE :;2./,], I~ ~
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cost of the survivor annuity. The Alternate Payee instead shall
receive the following percentage of the Qualified Joint and
Survivor Annuity benefit available under the Plan's Qualified Joint
and Survivor Annuity provisions:
Number of months participation
in the Plan while married
Number of months participation
in the plan (up to benefit
commencement date)
PART G-FORM OF BENEFIT AT COMHENCBMBNT
If the Alternate Payee's assigned benefit is to be paid over the
life of the Alternate Payee, then the benefit will be distributed
in the form of an actuarially equivalent life annuity paid over the
Alternate payee's own lifetime. It will be the responsibility of
the Alternate Payee to advise Bell Atlantic as to the date on which
payment of benefits are to commence.
If the assigned benefit is to be paid over the life of the
participant and the Order requires a Qualified Joint and Survivor
Annuity benefit, then the only available form of benefits to both
the Participant and Alternate payee is for the Participant to
receive his/her benefit in a Qualified Joint and Survivor Annuity,
The Alternate payee will be considered a partial or total survivor
Annuitant, as specified in part F,
PART H-COMMENCEMENT OF BENEFITS
If the assigned benefit is to be paid over the life of the
Alternate Payee, subject to the provisions of Part I
(Understandings & Conditions), the Alternate Payee may elect
commencement of his/her assigned benefit at the earliest date at
which the participant may commence benefits, but no later than when
the Participant commences receipt of benefits,
If the assigned benefit is to paid over the live of the
particip~nt, subject to the provisions of Part I (Understandings &
Conditionsl, the Alternate payee's benef1t commencement will occur
when the participant elects to commence receipt of benefits,
Please Note: Regardless of whether the benefit is to be paid over
the life of the Alternate payee or the life of the Participant, the
benefit cannot be distributed until the 60 day waiting period has
expired or until receipt of a properly completed and notarized
Waiver of Appeal form,
IMPORTJlJ'lT: It is the responsibility of the Alternate payee to
contact the Bell Atlantic Benefit Office at least 60 days in
advance of the date when he/she wishes to elect to commence receipt
of his/her assigned benefit,
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IT IS SO ORDERED THIS
Participant
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Attorney for Participant
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Print Name and Mailing Address
MWUNCI: :T. -:BA-i ~ 7'
60 ? I A45s ~ J)t. ),II-r- J
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Telephone number
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Alternate pa}'ee
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Attorney for Alter ate Payee
Date
Print Name and Mailing Address
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Re~ations order, the Alternate Payee's assigned benefit will be
processed for payment as soon as practical following the 60 day
waiting period or upon receipt of a properly completed and
notarized Waiver of Appeal form,
SECTION (6) UNDERSTANDINGS AND CONDITIONS
1, Change of Plan sponsor-changes in plan sponsor, Plan
Administrator or Plan Name shall not affect this Order,
2, Death of the Alternate payee-In the event of the
Alternate payee's death prior to the distribution of the assigned
benefit, the amount assigned will be paid out to her estate.
3, Name ana Address-The f'articipant and the AJ.ternate
payee must advise the Plan Administrator of any changes in the
mailing address(s) or legal names(s) as previously set forth in
this Order,
4, Notice of Prior Order-By the submission of this
Domestic Relations Order, the interested parties in this cause
certify that they are not aware of any prior Orders which purport
to dispose of the benefits described herein (except other
proceedings in the same matter with respect to the same parties and
of which the Plan Sponsor already is aware), Should a prior Order
exist, it is the responsibility of the interested parties to advise
the plan Administrator prior to the Plan Administrator's
determination of the "qualified status" of this Order,
5, Qualified Domestic Relations Order-This Order is
intended to fulfill the requirements of a Qualified Domestic
Relations Order pursuant to Section 414(p) of the Internal Revenue
Code, and as such, this Order is not intended to require the Bell
Atlantic Savings and security plan to provide any increased
payments over those otherwise due the participant under the Plan,
6, Tax Basis-The tax basis of the distribution to the
Alternate f'ayee must be on a pro-rata basis pursuallt \.0 I:lterna.~
Revenue Code Section 72(m) (10),
7, Terms-The terms used in this Order shall have the
same meaning as in the Bell Atlantic plan documents,
8, valuation-Accounts in the Bell Atlantic Savings &
security plan are valued on a monthly basis,
IT IS SO ORDERED THIS
:l/!-' day of
, 199 t
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Attorney for Participant
Attorney for Altern
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Print Name and Mailing Address
Lawrence J. Bailey
5071 Bass Lake Drive
Apt. T-1
Harrisburg, PA 17111
717-561-8787
Print Name and Mailing Address
Nadine A, Bailey
10S F~wn Ridge North
H'IrrishlJrg, [>1\ 17110
717-652-0901