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YVONNE G. OCKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v~.
: CIVIL ACTION - LA W
: NO. 97-4877 CIVIL TERM
MICHAEL S. OCKER,
Defendant
: IN DIVORCE
PRAECIPE
TO THE PROTHONOTARY:
Please incorporate the attached Property Settlement and Separation Agreement, daled
February 13, 1998,10 the above-captioned divorce action.
Respectfully ~ubmitted,
./.'
. 1
Jam.. J. Wa . r, Es
K~r and own
Li rty Lo
4 st Li y Avenue
Carlisle, PA 17013
Dated; May II, 1998
"
PROPERTY SETTLEMENT AND SEPARATION AGREEMENT
THIS AGREEMENT, made this 13th day of February
1998, at Carlisle, Cumberland County, Pennsylvania, by and
between MICHAEL S, OCKER of 32 Garland Court #2, Carlisle,
Pennsylvania 17013 (hereinafter referenced as "Husband")
AND
YVONNE G, OCKBR of Carlisle, Pennsylvania (hereinafter referenced
as "Wite").
ARTICLE I
SEPARATION
1,01 Separation ot Parties, Differences have arisen
between the parties as a result of which they have been living
separately and apart since July 28, 1997.
1,02 Intention to Live Apart. The parties intend to
maintain separate and permanent domiciles and to live apart from
each other. It is the intention and purpose of this Agreement to
set torth 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.
ARTICLE II
ENFORCEABILITY AND CONSIDERATION
2,01 Equitable Distribution ot Marital property, The
parties have attempted to divide their marital property in
accordance with the statutory rights of the parties and in a
manner which conforms to the criteria set forth in 5401 of the
Pennsylvania Divorce Code, and taking into account the tOllowing
considerations: Any prior marriages of the parties; the age,
.
health, station, amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of the
parties; the contributions of each party; the opportunity of each
party for future acquisition of capital assets and income; the
sources of income of each party, 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 each party as homemaker; the value
of the property set apart to each party; the standard of living
of the parties established during the marriage; and the economic
circumstances of each party at the time the division of property
is to become effective,
The division of existing marital property is not intended by
the parties to constitute in anyway 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,
2.02 Incorporation an4 Merger, This Agreement shall be
incorporated but not merged in the decree of divorce contemplated
herein. This Agreement shall survive any action for divorce and
decree of divorce and, unless otherwise set forth herein shall
forever be binding and conclusive on the parties; and any
independent action may be brought, either at law or in equity, to
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enforce the terms of this Agreement by either Husband or Wife
until it shall have been fully satisfied and performed, Any
provisions herein concerning property rights, alimony and counsel
fees shall not be modifiable. The considerations for this
Agreement are the mutual benefits to be obtained by both of 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 is stipulated, confessed and admitted
by the parties, and the parties intend to be legally bound
hereby,
2,03 Agreement 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
predicated upon an agreement for prosecution to conclusion of the
pending action for divorce. 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, either absolute or otherwise, upon just, legal and
proper grounds; nor to prevent either party from defending any
such action which has been, mayor shall be instituted by the
other party, nor 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 enforce~ble
and this warranty, covenant and representation is made for the
specific purpose of inducing Husband and Wife to execute the
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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 event, he
and she are and shall forever be estopped fr.om asserting any
illegality or unenforceability as to all oz' any part of this
Agreement.
ARTICLE III
EQUITABLE DIVISION OF MARITAL PROPERTY
3,01 Equitable Division of Real Property. The marital
dwelling at 32 Garland Court #2, Carlisle, Pennsylvania, will be
valued by agreement at $110,000. From that value will be
deducted the balance of the first mortgage at Farmers Trust
Company on the date of this Agreement and the sum of $35,000
representing Husband's non-marital investment in the property,
Husband will pay Wife one-half the net balance after the
aforesaid deductions within ten days of issuance of a full and
final Decree in Divorce divorCing the parties from the bonds of
matrimony, Concurrently with execution of this Agreement, Wife
will execute a Deed to be prepared at the expense of Wife
conveying all of her right, title and interest in said premises
to Husband, The Deed shall be acknowledged when executed and
held in escrow by counsel for Wife pending receipt of the
aforesaid funds payable to Wife.
3,02 Equitable Division of Personal Property.
(a) The furniture, household goods and other similar
untitled personal property have been divided to the mutual
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satisfaction of the parties hereto, and each of the parties
retains absolute ownership of such items in his or her possession
or control at the date of this Agreement, The property shall be
deemed to be in the possession or under the control of either
party if, in the case of tangible personal property, the item is
physically in the possession or control of the party at the time
of the signing of this Agreement and, in the case of intangible
personal property, if any physical or written evidence of
ownership, such as passbook, checkbook, policy or certificate of
insurance or other similar writing is in the possession or
control of the party, unless provided otherwise in this
Agreement;
(b) Husband will execute and deliver any documents
necessary to formally release his rights in or claims to the
employee benefits, including without limitation, employee
pension, stock, profit sharing and savings plans, if any, of
Wife, Husband will also agree to execute a Qualified Domestic
Relations Order to be prepared by and at the expense of Wife
which would authorize the administrator of Husband's pension to
rollover into an IRA for Wife the sum of $13,000 in full
satisfaction of Wife's claims against the corresponding employee
benefits of Husband; and
(c) The parties will execute and deliver any documents
necessary to formally release their rights and all claims to the
life insurance of the other,
-5-
(a) In the event that future legal proceedings of any
nature may be necessary for the interpretation or enforcement of
this Agreement or any valid modifications hereof, the prevailing
party shall be entitled to reasonable counsel fees incurred.
(b) Reasonable counsel fees hereunder shall be defined as
reasonable hours expended at the then hourly rate of counsel for
the prevailing party.
(c) Such counsel fees shall extend to any independent
proceedings necessary to collect counsel fees or to enforce any
other judgment or decree in connection with this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7,01 Income Tax consequences. The parties have heretofore
filed joint federal and state income tax returns. Both parties
agree that in the event any deficiency in federal, state or local
income tax is proposed, or any assessment of any such tax is made
against either of them, each will indemnify and hold harmless the
other from and against any loss or liability for any such tax
deficiency or assessment and any interest, penalty and expense
incurred in connection therewith. Such tax, interest, penalty or
expense shall be paid solely and entirely by the individual who
is finally determined to be responsible for the deficiency or
aBsessment, Except as otherwise set forth herein, any income tax
incidents of any kind imposed by virtue of any transfers of
assets or other payments required under this Agreement will be
the responsibility of the transferee,
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7,02 O.n.r.l R.l.... of All Claim.. Each party hereto
r.leases the other from all claims, liabilities, debts,
obligations, actions and caU~OB at action of every kind that have
been inourred reIat Inq to or ,\1' Is Ing f rom the marr iage between
the parties, Howover, neither party is relieved or discharged
from any obligation under this Agreement or any other instrument
or dooument executed pursuant to this Agreement.
7,03 Sube.qulnt Oivora.. Nothing herein contained will be
deemed to prevent either of the parties from maintaining a suit
for absolute divorce against the other in any jurisdiction based
upon any past or future conduct of the other, nor to bar the
other from defending any such suit, In the event any such action
is instituted or concluded, the parties will be bound by all of
the terms of this Agreement,
7,04 .aivlr of Zet.t. Claim, Except as otherwise herein
provided, in the event of the death of either party hereto, each
party heroby waivos, releases and relinquishes any and all rights
that h. or ehe may have or may hereafter acquire as the other
parties' .pouse under the present or future laws of any
juriediction, as follows:
(a) to elect to take against the will or codicils of the
other party now or hereafter enforced;
(b) to share in the other parties' estate in cases of
inttlstlloYI and
(c) to act aD executor or administrator of the other
parti.e' .state.
-8-
7,05 No Debts and Indemnification. Each party represents
and warrants to the other that he or she will not incur any debt,
Obligation or other liability, other than those already described
in this Agreement, on which the party is or may be liable, Each
party covenants and agrees that if any claim, action or
proceeding ib hereafter initiated seeking to hold the other party
liable for any other debt, obligation, liability, act or omission
of such party or for any obligation assumed by a party hereunder,
the party liable will, at his or her sole expense, defend the
other against any claim or demand, whether or not well-founded,
and that he or she will indemnify and hold harmless the other
party in respect to all damages resulting therefrom, The
Obligation created hereunder will be payable as alimony so as to
constitute an exception to discharge in bankruptcy,
7.06 Full Disclosure. Each party asserts that he or she
has made a full and complete disclosure of all of the real and
personal property of whatsoever nature and wheresoever located
belonging in anyway to each of them, of all sources and amounts
of income received or receivable by each party, and of every
other fact relating in anyway to the subject matter of this
Agreement. These disclosures are part of the considerations made
by each party for entering into this Agreement,
7,07 Right to Live separately and Free from Interferenoe,
Each party will live separately and apart from the other at any
place or places that he or she may select. Neither party will
molest, harass, annoy, injure, threaten or interfere with the
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other party in any manner whatsoever, Each party may carryon
and engage in any employment, profession, business or other
activity ae he or she may deem advisable for his or her sole use
and benetlt, Neither party will interfere with the use,
ownership, enjoyment or disposition of any property now owned or
hereatter acquired by the other.
7.08 Aqr.em.nt Voluntary and clearly Understood. Each
party to this Agreement acknowledges and declares that he or she,
respectively:
(a) In fully i\nd completely informed as to the facts
relating to the subject matter of this Agreement and as to the
righte and liabilities of both parties;
(b) Enters into this Agreement VOluntarily after receiving
the advice ot independent counselor, having had the opportunity
to do eo, having decided not to do so;
(c) Has given careful and mature thought to the making of
thie Agreement;
(d) Has carefully read each provision of this Agreement;
and
(e) Fully and completely understands each provision of this
Agreement, both as to the subject matter and legal effect.
7,09 Compliance. The parties will execute and deliver any
documents necessary to formally conclude any of their obligations
under the terms of this Agreement to each other.
7,10 Detault. If either party fails in the due performance
of any of his or her material obligations hereunder, the party
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not in default will have the right to act against the other, at
his or her election, to sue for damages for breach hereof, or to
rescind this Agreement or seek such other legal remedies as may
be available to either party. Nothing herein shall be construed
to restrict or impair either party in the exercise of this
election,
7,11 Amendment or Modification. This Agreement may be
amended or modified only by a written instrument signed by both
parties.
7.12 Successors and Assigns, In the event of the death of
either party prior to the issuance of a Decree in Divorce, this
Agreement shall survive the death; and all property, whether
jointly or separately owned, shall be divided under the terms of
this Agreement between the estate of the decedent and the
surviving spouse as though the Decree had issued prior to the
death, Except as otherwise expressly provided herein, this
Agreement will be binding on and inure to the benefit of the
respective legatees, devisees, heirs, executors, administrators,
assigns and successors in interest of the parties,
7,13 Law Governing Agreement. This Agreement will be
governed by and will be construed in accordance with the laws of
the Commonwealth of Pennsylvania in effect at the date of
execution hereof.
7,14 aeoonciliation. In the event of reconciliation,
attempted reconciliation or other cohabitation of the parties
hereto after the date of this Agreement, this Agreement shall
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