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HomeMy WebLinkAbout97-03885 -s .- ,. o a V) ~ . -r ; . C I t { ~I I ! ____ i .- .> - U l{) gg r<) I I' 4. ADVICE OF COUNSEL Advice of Counsel. The parties acknowledge that each has had the opportunity to receive independent legal advice from counsel of his or her own selection, that each has no objection whatsoever to the other party's use of said counsel, that each is familiar with and fully understands the relevant law and relevant facts, including the assets, liabilities, income [and expenses] of the other party and that each has been fully informed as to (and understands) his or her legal rights and obligations (including reviewing the Divorce Code with her or his counsel). Each party represents that he/she understands that, in the absence of this Agreement and as a matter of law: (1) as a surviving spouse, he or she might be entitled to a greater share in the decedent's estate than is provided for in this Agreement; and (2) as a separated and/or divorced spouse, he or she might be entitled to greater support, maintenance, alimony pendente lite, counsel fees, costs, alimony, distribution of property, or other financial benefit arising from the marital relationship than is provided for in this Agreement. Notwithstanding the foregoing, the parties shall be bound by the terms of this Agreement. Each of the parties further acknowledges and agrees that, after having the opportunity to receive such advice and with such knowledge, and after having read this Agreement carefully and fully, this Agreement is fair, reasonable and equitable, that it is being entered into freely, voluntarily, and in good faith, and that its execution is not the result of any duress, undue influence, coercion, collusion and/or improper or illegal agreement. 5. DEFINITIONS 5.1. Divorce Code. The phrase "Divorce Code" shall be defined as Pennsylvania C.S.A., Title 23, Section 3101 et seq. (effective March 19, 1991). 5.2. Date of Execution of This Agreement. The phrase "date of execution" or "execution date" of this Agreement shall be defined as the date that the last party signs this Agreement. 5.3. Internal Revenue Code. The phrase "Internal Revenue Code" or "I.R.C." shall be defined as the Internal Revenue Code of 1986, as amended, or any successor statute thereto. References to sections of the Internal Revenue Code shall rerer to sections of the Internal Revenue Code as of the date of execution of this Agreement. 2 5.4. Asset. The word "Asset" shall be defined as anything of value, including, but not limited to, real and/or personal, tangible and/or intangible property and all financial interests however held. 5.5. Effective Date of Agreement. become effective and binding upon both date of this Agreement. This Agreement shall parties on the execution 6. EFFECT OF DIVORCE DECREE This Agreement shall continue in full force and effect after a final decree in divorce is entered in any jurisdiction, it shall survive and not merge into any such divorce, and its provisions shall not be affected by the entry of such a decree, surviving any such decree and remaining independent of any such decree. The terms of this Agreement shall be incorporated for enforcement purposes only, but not merged into the divorce decree. Therefore, should either party obtain an order of separation or divorce in any jurisdiction, that party shall take all reasonable steps to have this Agreement incorporated for enforcement purposes only, but not merged as part of any such order. The Court entering the decree shall have all of the powers of enforcement, which, at the discretion of the nonbreaching party, shall include, but not necessarily be limited to, all of the following: for breach of contract, under theories of equity, and under the Divorce Code, including under Section 3105 (which includes contempt). 7. EFFECT ON DIVORCE 7.1. Wife previously filed a divorce action in the Court of Common Pleas of Cumberland County, Pennsylvania, at No. 97-3885 civil, seeking a divorce decree pursuant to, among other provisions, section 3301(c) of the Domestic Relations Code. The parties shall take all legal steps (including, but not limited to, the timely and prompt submission of all documents and the execution of appropriate waivers of the right to file exceptions and of the right to file an appeal) necessary to ensure that a divorce pursuant to Section 3301(c) of the Domestic Relations Code is entered as soon as possible, but in any event not later than three (31 months from the date of execution of this Agreement. 7.2. Responsibility for Proceeding with Divorce. Wife shall be responsible for the prompt filing of the Praecipe to Transmit the Record and the related required documents and costs necessary to obtain the divorce decree. 1 7.3. Penalty for Delay. Notwithstanding the foregoing, if, after the execution of this Agreement, either party unreasonably delays or contests the obtaining of a final, unappealed divorce decree, that party shall exonerate and indemnify the other party against and hold the other party harmless from any liability and/or expense, including reasonable counsel fees, incurred as a result of such delay or contest in obtaining the decree. 8. PERSONAL RIGHTS Each party shall be free from any direct or indirect interference by the other in his or her personal and business activities as of the date of execution of this Agreement. Each party may reside wherever and with whomever he or she desires. The parties shall not interfere with, harass, or malign each other or the respective families, friends, colleagues, employers or employees of each other. Neither party shall enter the residence of the other party without the express permission of the other party. 9. WARRANTY OF DISCLOSURE Husband and Wife represent and warrant that they have disclosed to each other in full their respective assets (including the basis and holding period of such assets, where applicable), liabilities and income [and expenses], valued as of February 10, 1996, the date of separation of the parties, and as of the date of execution of this Agreement, that they have been given ample opportunity to identify, analyze and value the assets titled in the name of or held for the benefit of the other party and that this Agreement was negotiated and entered into on the basis of those disclosures and their substantial accuracy. The parties acknowledge that: a) no formal appraisals have been conducted and that the values assigned to the assets merely are the good faith estimates of current fair market value/book value by the parties themselves and that the values ascribed to the assets might be very different if other methods of valuation were utilized; b) the parties assign very different values to many of the assets; and cl they are aware that, but for this Agreement, they might be entitled to additional formal discovery, including by review of documents, inspections, interrogatories, depositions or otherwise. Notwithstanding the foregoing, any further disclosure, and any further statement in this Agreement regarding disclosure, is specifically waived. No representations and/or warranties have been made as to those assets. 4 10. Personal property As of the date of execution of this Agreement, each party shall set over, transfer and assign to the other party all of his or her right, title, claim and/or interest in and to all of the personal property in the control of or possession of the other party, including, but not limited to, all furniture, furnishings, household appliances and equipment, art work and jewelry. 10.1 Motor Vehicles. Commencing on the date of execution of this Agreement, Wife shall retain possession of, as her separate property, the Pontiac automobile currently titled in Husband's name for her own use and disposition and Husband shall retain possession of as his separate property the Honda automobile currently titled in his name for his own use and disposition. Husband hereby agrees to execute any and all documents necessary to transfer title of the Pontiac to Wife. From the date of this Agreement, the party having title to an automobile shall be solely responsible for all expenses associated with the automobile, including, but not limited to, any sales or other taxes relating to the transfer, insurance, maintenance, gasoline, and liens and/or loans. The party having title to an automobile shall be solely liable and shall keep the other party exonerated and indemnified against and held harmless from any past, present or future liability, including reasonable counsel fees and increased insurance premiums, due to any of the expenses set forth in the preceding sentence. If the party who has title to the automobile as of the date of execution of this Agreement incurs any increased insurance premiums as a result of any accidents or claims in which the other party was involved, the other party shall keep the party who has title to the automobile exonerated and indemnified against and held harmless from any such increased insurance premium. 10.2 Retirement Benefits. Wife and Husband hereby specifically release and waive any and all interest, claim, or right that she or he may have to any and all retirement benefits (including pension or profit sharing benefits) Or other similar benefits of the other party. The parties shall execute any documents pursuant to the Retirement Equity Act or any similar Act that may be required from time to time to accomplish the purpose of this Paragraph. s 14. WARRANTY AS TO EXISTING AND FUTURE OBLIGATIONS a. During the course of the marriage, wife and Husband have incurred certain liabilities. Each party represents, covenants and warrants that, to the best of his or her knowledge, as of the date of execution of this Agreement: a) no unpaid liabilities, remain which were incurred by him or her or on his or her behalf for which the other party may be deemed liable; b) there are no actions, suits or proceedings pending or threatened against Husband and/or Wife or affecting any jointly held properties or rights, at law or in equity or before any federal, state, municipal or other governmental agency, nor is Wife or Husband aware of any facts which to his or her knowledge might result in any such action, suit or proceeding; c) if any such liabilities, actions, suits or proceedings should be determined to have existed as of the date of execution of this Agreement or thereafter, the party who incurred that debt shall exonerate and indemnify the other party against and hold the other party harmless from any liability or expense, including counsel fees, incurred as a result of those liabilities; and d) he or she shall not incur any liability whatsoever in the future for which the other party or the estate of the other party may be liable, and shall exonerate and indemnify the other party against and hold the other party harmless from any such damages resulting from such liability, including reasonable counsel fees, incurred by the other party. b. It is acknowledged between the parties that a certain debt to the IRS existed at the date of separation. Husband hereby agrees to be solely liable for payment of said debt, and any IRS debt incurred by the parties jointly. Husband further agrees to indemnify and hold harmless Wife as stated above. 15. KOTUAL WAIVERS AND RELEASES 15.l This Agreement constitutes a full and final resolution of any and all claims which each of the parties ever had, now have or may have in the future against the other party and/or the estate of the other party, including, but not necessarily resulting from, their status as Husband and Wife. Therefore, except for all rights and obligations specifically arising under this Agreement, the parties each do, for themselves and for their heirs, executors, administrators, successors, and agents, hereby mutually waive, remise, release. quitclaim and forever discharge the other party and the heirs. executors, administrators, successors and agents of the other party, for all time to come and Cor all purposes whatsoever. of and from any and all right, title, interest, cause of action and/or claim in or against the other (except for divorce). or the assets of the other, or against the estate of the other, of whatever nature (including, but not limited to, the assets identified pursuant to this 7 Agreement as belonging to the other party, any income and/or gain from such property, and any assets of whatever nature acquired by the other party prior to or subsequent to the date of execution of this Agreement) and which he or she now has or at any time in the future may have against the other, the estate of the other or any part thereof, whether in law or in equity, whether known or unknown, matured or unmatured, and whether arising under the laws of any jurisdiction and including, but not limited to, the following: (i) out of any former acts, contracts, engagements or liabilities of such other; (ii) pursuant to inheritance, elective and/or intestate rights to the other party's estate, including, without limitation, claims for dower, curtesy, widow's or widower's rights, family exemption, a distributive share, survivor's allowance, benefits under a retirement plan, under the intestate laws, the right to take against the deceased spouse's Will, the right to treat a lifetime conveyance by the other as testamentary, and all other rights of a surviving spouse to challenge a deceased spouse's Will, challenge the other party's Will, elect to take against the other party's Will, and/or participate in a deceased spouse's estate as administrator, executor or otherwise; (iii) right to share in any retirement benefits for the other spouse, except social security; and (iv) for past, present or future support or maintenance, alimony, alimony pendente lite, property division (including, but not necessarily limited to, equitable distribution), counsel fees, costs or expenses, whether arising as a result of the marital relation or otherwise, whether under the Divorce Code or otherwise. 15.2 Neither party may apply to any court for a modification of this Agreement, whether pursuant to the Divorce code or any other present or future statute or authority. In the event that either of the parties shall nevertheless seek such a modification of this Agreement, that party shall indemnify the other party against and hold the other party harmless from any loss resulting therefrom, including reasonable counsel fees and costs. U. WAIVER OR KODIFICATIOtf TO BI III WRITIIIG No modification or waiver of any of the terms of this Agreement shall be valid unless in writing and signed by both parties. . 17. NO WAIVER OF DEFAULT This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement. No waiver of any breach or default of this Agreement shall be deemed a waiver of any subsequent default of the same or similar nature or a waiver of strict performance of any other obligations pursuant to the terms of this Agreement. The failure of either party to insist upon strict performance of any of the terms of this Agreement shall in no way affect the right of such party to enforce those terms in the future. 18. REMEDIES IN THE EVENT OF A BREACH 18.1. In General. In the event of a breach of any of the provisions of this Agreement by one of the parties, the remedies available to the non-breaching are cumulative and include all remedies at law and in equity, including those for breach of contract, under theories of equity, under the Divorce Code, as amended, including Section 3105 (which includes contempt), as if this Agreement had been an Order of the Court, and shall not be limited to those remedies specifically referred to in this Agreement. In the event either party breaches any provision of this Agreement, the breaching party shall exonerate and indemnify the non-breaching party and hold the non-breaching party harmless for all losses resulting from such breach, including, but not limited to, counsel fees, and costs relating to such breach, whether or not litigation is instituted. lB.2. Jurisdiction. Subject matter jurisdiction and venue shall be proper in the Court of Common Pleas for the County of Cumberland, Pennsylvania for any action arising out of this Agreement, including resolving any disputes between th~ parties. Such court shall have personal jurisdiction over the parties with respect to any such action. 1t. INTEGRATION This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no other express or implied, oral or written representations, terms, covenants, conditions, agreements or warranties, of any nature whatsoever, other than those expressly set forth in this Agreement. ., 24. CONTRACT INTERPRETATION For purposes of contract interpretation and for the purpose of resolving any ambiguity in this Agreement, Husband and Wife agree that this Agreement was prepared jointly by their respective attorneys. The "Whereas" clauses contained on page 1 of this Agreement are an integral part of this Agreement and shall be considered in determining the parties' intent in interpreting this Agreement. 25. NOTICE PROVISIONS a. Notice to Wife provided for in this Agreement shall be sent by certified mail, return receipt requested, by hand delivery, or by telecopy to Wife at 221 Adams Street, Steelton, PA 17113, and to Friedman & Friedman, P.C., at 600 N. Second st., P. O. Box 984, Harrisburg, PA 17108, or to such other address as Wife from time to time may designate in writing. b. Notice to Husband provided for in this Agreement shall be sent by certified mail, return receipt requested, by hand delivery, or by telecopy to Husband at 1830 Centennial Dr., 1102, Louisville, Boulder County, Colorado 80027, or to such other address as Husband from time to time may designate in writing. c. Notice may be sent by regular mail only if an attempt to first notify by certified mail, by hand delivery, or by telecopy, is unsuccessful, due to no fault of the party to this Agreement who is attempting to serve such notice. d. Each party shall promptly notify the other party, in writing, as to any change in mailing address, so long as either party has any obligations remaining pursuant to the terms of this Agreement. e. Any payments required to be made pursuant to the terms of this Agreement shall be forwarded to the intended party at the address indicated in this Paragraph, unless otherwise indicated in this Agreement. :t,. COUllTUPU'l'8 This Agreement may be executed in counterparts, each of which shall be an original and which toqether shall constitute one and the saa. instrument. II r, ..f' ("'"1 c-c -., ; ~ , ., fi ! ~...... l '-," ...... 1 . " , . . ;< " ::. " ".j.) "' .J) ) -J .1 ~.. ... 1 ;>, r, "' 1 . , ~:~ I '.-, ) \ ~ -, ""., ~.~ ", t';t -~ v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. JAMIE S. KOSANOVICH, Plaintiff ELI M. KOSANOVICH, Defendant : COMPLAINT IN DIVORCE COMPLAINT UNDER SECTION 3301(c) OR SECTION 3301(4) OF THE DIVORCE CODE l. Plaintiff is Jamie S. Kosanovich, who currently resides at 4521 Linden Avenue, Apt. 3, Mechanicsburg, Cumberland county, Pennsylvania 17055. 2. Defendant is Eli M. Kosanovich, who currently resides at 1830 Centennial Dr., 1102, Louisville, Boulder County, Colorado 80027. 3. The parties have been bona fide residents in the Commonwealth for at least six (6) months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were married on May 30, 1992, in Linfield, Pennsylvania. 5. Plaintiff avers that there are no children of the parties under the age of eighteen (lB). 6. There have been no prior actions of divorce or for annulment between the parties. 7. Plaintiff has been advised that counseling ia available and the Plaintiff may have the right to reque.t that the COurt require the parties to participate in counseling. I. The aarriage is irretrievably broken. IN 11m mURT OF ca.r.DN PLEAS OJI.IlERLAND CCUN'IY, PENN'iYLVANIA RI. OJ.I'LAINr IN DIVOHCE (It) JMnE S. KffiANOVIOI, Plainti ff F\Lf.()-QFF1CE OF 11-'': FPOn-:.Jt'l:lTPRY 91 JUL \ 1 PH 3: Ii 2 i" '~"" " ,', ,. ,-0" It tT\I C\j".Lri:l\j,,'" VJ\'.11. rENt ;.~...,.. 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