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HomeMy WebLinkAbout97-05223 ~ " . .. .:, ... tJ ~ r'J ~ I "- \)0- d ~ 'I , " , " 1C1'(jii , --'I' ,i',;l::)i: '),:'(: ,,'11 , , " , 't,' ! .",. IL/"v,:'. "',;"\:1 ilf, ~';r; ,I, ~I,'f}; frt 'i-'Ull~ "/l~/J I" ~>\'/~,~ , 'j ~i '_ .;','r) ri "',':;'! ';i,)'{;)ll , ",,'\Q . , "t:},'j I :r~i/ , ,r ,,, 1,,/ " " '" " , I' i' I'" " , ',l'r , " , ,I , , " , 1[',' .. , , " " , , , I, ", ',I I 'I' , I' " \ , I '. 'I I, , " ,f' " ?" " " 'I' , , ~ " I' " " ' I' 'I ii II ,I: t ~ ~ I, I, " ',I I t"t " , ' " "11 , " " ,1\ " " " ,I ,)'" " ' ',' J' .,,' " " " , , I . .', , , If " " 'J . , I, " , , , , , .. 'I; ,-', I~ ( , " " ' I " , , 'I '...... .., , , " ,I " , " '. , " " " ;1,..; ,', 0'" 'I, , " " '", " , , " , , " . , " " : , " , , , , ',i , , , , , '." , '\ ", . ~- ',' '. I, 'i' " " I ) ,I " ? , " " .,rj' '. , " " ',,1 " I' ',' " , 1,1 '01 " .. , ,I t, 'd .,'ii': , '",1 I,i;'" " " , .!', " _,'I' I' '", "-' , " I' , .:.:- .:c. .:+:. <c. .:.> .:.:. .:.:. ,ie, .:c. .>>:. .:c. .:.:. .:.:. .:.:. -!.;. .:+:. .:.:. .:.:. .:.:- .:+:. :> .:.~. .:<<. .:4:. .:te. .:.:. .:+;. -:.:. .:c- .:* -;t ~I-----~'--'----"--- _"',_""_"'''u'''''' .. ". .'..'.......'.-.--.'8 ~I 8 :1 IN THE COURT OF COMMON PLEAS : ~I ill ~~ :1 ~' ~ 8 ~ a " ~ ~ ~ . - ~!_--_...., . ~ ... ... -, ... ~ ~ ~ ~ ~ ., ~ ~ .' ., ~ ;;; " ~ ." ~I $1 . ~ ~ 8 8 $ 8 8 ,;, " OF CUMBERLAND COUNTY STATE OF ~~ PENNA, GEORGE E. NAMEY. JR. Plaintiff N (I ,sm ,CiyU ..J.?~7,.., Vt1!'S I 1.-; . JOAN B. NAMEY Defendant DECREE IN D I V 0 R C E 'S-oA,,t1, AND NOW, ,'.', "b, ~!.,'" 19!',~t ~'ordered and decreed that, ,CWflYE, E., ~)'., ,JR...".""""""""",..,., plaintiff, and . ,J.OAN ,B., ,NJIl.1EY , . , , , " ""'" , , , , , , , , ' , , . .. .. , , , , .., defendant. are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; That the terms of the parties' Marital Settlement Agreerrent dated .....,., ,.......".........." ,....... .,...,. ,..., ". "..,. ...,... ,....,., ,Dec~r ,21. ,1998., ,be, inco~rated ,and,not~:';l~d. into, the, Di,:,,?~~:.,... . By The Alle.t: /' -~ ./) l~ " q~#~. j: (t'u ,I..J ~ '-."iY~!Y' /.--"~ - -(:7 I/.b",.... ,r' .\{./,4" fJ2' ~7 "/7 Prothonotary ,. . .., .:c. ... .:.:. .:.;. -:..:- .:-t;. .:+:. .:.:. ':.:. .:.:. .:+:. ,'. ~ ~ 8 ~ 8 8 8 8 8 8 8 8 "I 8 , 8 8 8 " ~ . ~ . . - . . t .' I, GEORGE E. NAMt;V. JR. Plaintiff : IN nn: COllRT 0.. COMMON PU:AS : CIIMBf:RI.AND eOJ/NTY, Pf:NNSYI.VANIA v, : NO. ~22J CIVIl. 1997 JOAN B. NAMEY. Dtftndant : CIVil. ACTION ,I.AW : IN DIVORCf: PRAECIPE TO TRANSMIT RECORI) To The Prnthonotary: Trnnsmitthe rccord, together with the j(lllowing inf(mnation. to the Court for entry of a divorce decrec: I. Ground for divorce irretricvable breakdown undcr Scction l&J30LL~ () 3301 (d) ill of the Divorce Code, (Chcck applicable scction.) 2. Date and manncr of servicc ofthc Complaint September 26. 1997 Certitied M<!iJ 3. (Complete either paragraph (a) or (b)) (a) Date ofcxecution ofthc affidavit of consent & waiver of required by Section 3301 (e) of the Divorcc Code: by the Plaintill' on January 6, 1999; by the Defcndant January 5,1999, (b)( I) Date of exccution ofthc Plaintifi's affidavit rcquired by Section 3301 (d) of the Divorce Code: ~.L(\ (2) date ofscrvice ofthc Plaintitl's affidavit upon the Defendant: 4. Related claims pcnding ~..eill!~~U.bil.U~rnlsof Settlemenl Al!.rrn!)enl dated December il.J.9.98..!Ill1l executcd Qy,,\ hc p.!I!1ie~.b~j n\;QfQorM~dand. f1Qtmergcd intQJb,dlivorce, ~. Date and ma~ner of service of the notice of intention to tile praecipe to transmit record, a copy of which is attached ._.........,.__ '''"_'~''......._...__._.__' s~t~~ Attorney for Plaintiff , ' , ~ . >: \.:) , .. , ~ '''; [""': , , , , , c-~ \ , , , , r , , " . ,. l, , V. I , " r .. , IJ' _.J H Ul Z < .0: tAl > ...l ..:l '" >< Ul Z Z o Z ~ ~ O' U . >< "" "" o Z .=> "" 0 0:: U :J Cl o :z u .0: tAl ..:l :r: e:: e-o "-1 OJ :z: :z H ::> ~ ~~~ \3' .......... I\l ......, 1-1) \1'- .......... - ~ J ~ - ~ "" K'\ \,0 \3-l .JVo ~ I,... ~ a I'V\ ........,..... ()Q ,'~ ~ ~~~ e-o ! ~ :z: .... H .... .... j 0::,.-\ ...,.... C ~U '" ' C III ~ ...-\ '0 >t III C U "-1"; ill ~JiU ~ro. ... . ill :z: >to . ~ j ~ zg~ "-1 :z: iI( s;:) tAl . rA ~i ~ 0:: OJ 0 ~ tAl . !'l " , , " .... (V) ,)" oj c' [.- ~: ,f;' 1-' .. "l ,,' " ,.: ;..-"~. '" ~. ~.. _c" ',I ~ ' (:: ,;:: ." ~\' 'i'~J "". " <', -II) " C'" . . f , '_~ ~\; -." 'l~. .... . I'll IJ f':: .~~: i... "l.. .,...1 fo": lJ. ~ 8 u , " ", , , ", , " , , ;' , , , , " " , " ,. " " GEORGE E. NAMEY, Plaintiff I IN THE COURT OF COMMON PL AS : CUMBERLAND COUNTY, PENN LVANIA v. : NO. 21!!1 SSS 1998 JOAN B. NAMEV, Defendant : CIVIL ACTION - LAW : IN DIVORCE AFFIDA VIT OF CONSENT UNDER SECTION 3301 (c) OF THE DIVORCE CODE I. A complaint in Divorce under Sp.ction 3301 (c) of the Divorce Code was filed on September 24. 1997, 2, The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing the Complaint. 3, I consent to the entry of final decree of divorce, 4. I understand that I may lose rights concerning alimony, division of property, lawyers fees or expenses if [ do not claim them betore a divorce is granted. I verilY that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa,C,S, ~ 4904 relating to unsworn falsification to authorities, DATE: I~o'" 9'1 ~, 4. 7J~ AN B. NAMEY .S. /I 16S-40-7694 . .. !" ' ~ (II , '., - , l'.;: 0<1.; .. "'j..", ~\j co; -); . ~t": -' ~.J ~ ' -- ' - " , f' ". 0- !:".J i~ "I ',' ,/: .,) ~! . ('J 1.I't:.,' " .!' i!.,; 1,._'''' ~.". 'l'li.U ';':1: .!U... r' "'''J fl,:.." ~ en d \3' -, ',. ' " , , " , '.1 ii' " . ' " , , , " " 'I., , , , , ", ,,' " ,'I " " , il "" ... , . , , " " ':. , . '. ~i 1:') .... l: , -.1, , ) 1-;, .. ~'(, " ". r.'::' ), ..,., .< : ~~' ".. J, " "'I , " 6 .. "" . . [;1' -,-, j;.j(,j . . , ~L ' .',-~ Lt)C"l. -, . " '" '" ~: l C> en c.J . , .' i' ,1,1 " ' , , I \ , ) I' , ..... ~ " t~ r.-~ .. I 'I ~J; ! ':1 .... " p:~, .'. ~)(" ':1. ... , ..~ i< I , 5dt~ fo.. ,"ttlJ ....l ~ ' , t:L. , f', (~ , , ~ ,... :"5 0' ~;J , " " ), ~ " . 'I I!.t ~I I ~ me Ildl ~ ' .... ... I '" ~~ {; ~ ~~ I '" ..... ~~ 0-1 '~ 5 . IllJ i~ > '21 U i j5:=> M rA ~I N ~ N I It'l . ~ Q:l . ~, 2 " '\, ~ ... . .'\ ' ,I', , ,"I ,.\ .' , " . , , , 'i ". . , , ' , ' . I " , , " I . ,\'f} ,. ,I? c ) :' I" " :'') , I .., ","-d ,,' ',:.' , )111 I ,. '.11 ':-. " " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA GEORGE E, NAMEY, JR, V, JOAN 8, NAMEY DOCKET NO, 5223 CIVIL 1997 ltURlTAL SE'lTLEltfENT AGREEMENT THIS AC,'REEMENT made Ih~ day ~I M .J:A/ , 1998, by and between GEORGE E. NAMEY JR., hereinafter called "HUSBAND" and JOAN D. NAMEY, hereinafter called "WIFE". WITNESSETH: WHEREAS, Husband and Wife were married on July II, 1970 in Wilkes,Barre, Luzerne, County, Pennsylvania; and WHEREAS, three children were born of this marriage, (Tanya N, Hittle (D,O,B. December 12. 1972), Kera M, Namey (D,O,B, August I, 1975) & Jason D, Namey (D,O,B, April 27, 1977); all are of majority; and WHEREAS, certain differences have arisen between the panics as a result of which they separated in February 1997 and are desirous, therefore, of entering into an Agreement which will distribute their marital property in a manner which is considered to be an equitable division of all joint property, and will provide for the mutual responsibilities and rights growing out of the marriage relationship; and WHEREAS, there has been a complete disclosure of the earnings and property of each party, and each understands his\her rights under the Divorce Code of the Commonwealth of Pennsylvania; and WHEREAS, the parties hereto, Husband having been properly advised by Iheir counsel, Husband by his allorney, Snnford A. Krcvsky and Wite, by her allorney, Dawn S, Sunday, havc come to this Agrcement. Thc partics heretofore, inlending to be Icgally bound, covcnant, promise and agree as follows: I. CONSWERA TION. Thc consideration for this Agrccmcnt is thc !Ill!1Y.ilI promise, covenants and agrccments herein contained, 2. SEPARA TJON. It shall bc Ia.wry) for cach party at alltimcs hereafter to Iivc separate and apart from the other party at such place or places as he or she may from time to time choose or deem fit. The foregoing provision shall not bc taken as an admission on the part of either party of thc lawfulness of the causes leading to their living apart, 3. NO INTERFERENCE. Each party shall be f~m interference, authority and control, direct or indirect, by thc other, as fully as if hc or she wcrc single and unmarried, 4. COUNSEl. FEES. Thc partics agrce that they shall both be \1:Ill1onsible for their respective counscl fees, S. SUPPORT. The parties agree to wai~ any rights to support which one may have for or against the other, 6. AI.IMONY. The parties agree that Husband shall pay to Wife. as alimony the sum of$500,OO (Five1lYn~(I}~onth, beginning on the second day of the first month following the entry of a final Decree in Divorce, Husband shall be obligated to make these payments directly to Wife for Sixty consecutive months (Five years). This amount shall be non,modifiable except the happening of any of the events set forth hereunder: -2- A. U~l\ln 9rWjJ~9rJhc;d~c;"!h9fJ).\I~bJl)Jsl, It is specilically understood and agreed that this Agreement shall cease and lerminate in the event of Wife's death ur Husband's death and this Agreement herein for Illimony is not intended 10 and shall not enure to the benelit of Wife's heirs ur eslate, 0, IM.w1Jim:iJllW-!ifWili:, Fur the purposes of this Agreement, .. remarriage" is defined as to include a participation by Wife as a principal in any marriage ceremony that is performed even if the mllrriage be void or voidable and despite any subsequent annulment thereafter or in a cummon law marriagc as recognizcd by the laws of the Commonwealth of Pennsylvania, or if Wife cohabils with anothcr unrelated m3n wilhoutthe formality of a marriage ceremony. C. ~...J2illy_m~! on!Y~h!\nd If Husband loses employment or his income is significantly reduced, his obligalion to pay alimony will be temporarily reduced to an amount mutually acceptable by the parties, However, the period for alimony shall not be extended under any circumstances, and withoul regard to Husband's income, beyond two (2) additional years, Husband shall be considered in breach of this Agreement ifhe has not paid a total ofThirty Thousand ($30,000,00) Dollars in alimony to Wife within seven (7) ycars from the execution date of this Agreement. It is further specifically understood and agrecd by and between the parties hereto that Wife accepts the provisions hcrein madc by Husband in accordance with the terms of this agreement, for Wife, in lieu of and in full settlement and satisfaction of any and all of Wife 's rights against Husband for any past, prcsent and future claims on account of support and maintenance; that it is specifically understood and agreed that the paymcnts. transfers and other considerations -3- herein recited so comprehend and discharge Bny and all such c1lliJJls by Wifl! against Husband, and are, inter alia, inliJlI settlement and salisfaction and in lieu of Wifl! '.I' past, present and future claims against Husband on IlCCl1Unt of maintenllnce and support, and also alimony, alimony pendente lite, counsel fees, costs and expcns':s and any other chllrge of any nature whatsoever pertaining to any divorce procccdings which may bc instituted by Wife inllny Court in thc Commonwealth of Pennsylvania, or any other jurisdiction and/or other counsel fees, costs and expenses incurred or to be chllrged by any counsel, or arising in any manner whatsoever, It is further specifically understood and agreed by and bctween the parties hereto that Hu.fhantl accepts the provisions herein made by Wife in accordance with the terms of this agreement, for HI/shand, in lieu of and in full settlement and satisfaction of any and all of Hushand '.I' rights against Wife for any past, present and future claims on account of support and maintenance; that it is specifically understood and agreed thlit the payments, transfers and other considerations herein recited so comprehend and discharge any and all such claims by HI/shand against Wife, and are, inter alia, in full settlement and satisfaction and in lieu of HI/shand's past, present and future claims against Wife on account of maintenance and support, and also alimony, alimony pendente lite, counsel fees, costs and expenses and any other charge of any nature whatsoever pertaining to any divorce proceedings which may be instituted by Husband in any Court in the Commonwealth of Pennsylvania, 01' any other jurisdiction and/or other counsel fees, costs and expenses incurred or to be charged by any counsel, or arising in any manner whatsoever, Specifically, the waiver of counsel fees, costs and expenses arising in any manner whatsoever will be limited to those in connection with claims for past, present and future right to -4- proceeding, whether or nol wcll-founded, and indemnify her and her property against any damages or loss rcsulting Ihcretrom, including, but not limited 10, costs of court and actual allorney's fces incurred by Wifc in conncction thcrewilh, C. Indemnlncation to lIusband: If any claim, action or proceeding is hereafter initiated seeking to hold Ilusband liable lor thc debts or obligations assumcd by Wife undcr this Agreement, Wife will, at hcr sole expense, defend Husband againsl any such claim, action or proceeding. whether or not well-founded, and indcmnify him and his property against any damages or loss resulting therefrom, including, but not limited to, costs of court and actual allorney's fees incurred by Husband in connection therewith. 10, /J/STRIIlUTION OF PERSONAl. PROPERTY. A. Household Property: The parties hereto mutually agree that they have rlfe.9~ a satisfactory division of the furniture, household furnishings, appliances, and other household personal property between them, and they mutually agree that each party shall from and after date hereof be in possession of all such tangible personal property presently in his or her possession, The parties hereto have divided between themselves, to their mutual satisfaction, all items of tangible and intangible marital property, Neither party shall make any claim to any such items of marital property, or of the separate personal property of either party, which are now in the possession and/or under the control of the other, Should it become necessary, the parties will agree to sign, upon request, any title or documents necessary to give effect to this paragraph, Property shall be deemed to being 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 -6- at the time of the signing of thc Agrccment and, in thc cllse ofinlangiblc pcrsonal property, if any physical or wrillen cvidcnce of ownership, such as passbook, chcckbook, policy or certificate of insurance or other similar wriling is in the possession or control of the party, Husband and Wife shall each be deemed to bc in thc possession and control of thcir own individual pension or other cmployee benefit plans or rctircment benefits of any nature to which eilher party may have a vcstcd or contingent righl or intcrest althc time of the signing of this Agreement, exccpt provided for under provisions containcd in Paragraph lOB and neither will make any claim against ihc othcr for any interest in such bencfits during the pcriod of separation, exccpt as stated hcrcin or subscqucntly agrecd upon in writing, B. Pension Benefits: (8) Husband agrccs to provide Wife with on~half(50%) oflhe of the marital value of his Pension with IBM, This amount is to bc computed from date of marriage or commencement of Pcnsion (whichevcr comcs later) and date of separation consistcnt with the appraisal sccured through Pension Appraiscrs Inc, (b) Husband agrp.es that he shall execute any documents necessary to release and waive forever any right, title or intcrest he may have in Wife's Pcnsion with Capital Blue Cross (QllJ ($22,205,00), profit-sharing, or any other plan or account or rctirement or deferred income), Each party agrees 10 executc whatever documents are rcquired to clTcctuate the purpose of this paragraph (Ten B), Each party appoints the other as allorney-in-fact for thc purpose of consenting to any election under any plan under Section 417 of the Internal Revenue Code or Section 205 of the Employec Income Security Act of 1974. Except for the provision outlined -7- abovt, it is specifically agreed Ihat each party's right! under their respective retirement plans constitute their own SellBrate property, (d) OUlllified Domestic Relations Order IODROl: I. To eflcctthe provisions of this paragraph as it rei lites to the rnM Pension, the Parties hereto agree to the entry of a Qualified Domestic Relations Order (QDRO) as prepared and accepted by the IBM Reliremenl System and do hereby agree to the tenns set forth under said QDRO, which is incorporated herein in its entirety and attached hereto liS Exhibit "A". 2. In accordance with the appraislll of Pensions Appraisers, Inc, the parties agree that, beginning November 1998 and continuing until the QDRO is in effect, Husband shall pay directly to Wife the amount of Five Hundred Seventy-five 57/100 ($575,57) Dollars per month, within five (5) days of receipt by Husband of Husband's IBM pension payment, This $575,57 payment represents Wife's Forty,four and Thirty-three one hundredths (44,33%) percent marital share of the gross pension of One Thousand Eight Hundred Three 29/100 ($1,803,29) Dollars minus 28% for taxes taken out by IBM prior to payment to Husband, At such time as the QDRO is in effect for the IBM pension and payments are made directly to Wife by the pension administrator in the amount of Seven Hundred Ninety-nine ($799.40) Dollars, Wife shall be responsible to pay all taxes due on the $799.40 payment, either through withholding by the pension administrator or separately, as arranged between Wife and the IBM pension plan administrator, Husband shall not be responsible for paymenl of taxes on the $799.40 monthly payment to Wife by the pension plan administrator C. Retirement Accounts: Husband and Wife agree that Wife shall remain in the possession and control oCher -8- 401(K) Plan with CaPlllllBlue Ctlm (COe) ($29,645,00) and ljyslhlmJ shall remain in the possession and control of his 401(K) Plan with 1l1l11\\;hj.DBIJLSY~lems (lIDS) ($32,954,00), D. Mutual Funds: Husband and Wife agree to division the parties M\lIJ.Ll\Lfyrul,~ currently invested with New England Funds (Account No(s), 30071776590-4; 3007465586,2; 3007465590-1; 3007465594-3; 3007465598,5; 3007465602,3), with ~~ (Fifty Percent) to Wife and 50% (Fifty Percent) to Husband, Husband and Wife agree to execute any documents necessary to effectuate the provisions of this paragraph and to hold one another harmless thereon, The funds are to be distributed within 15 days of execution of this Agreement. E. Vehicles. (8). Husband shall retain possession and financial responsibility of his 1991 Ford Explorer with the title being transferred to him as his sole property, (b). Will: shall retain possession and financial responsibility of her 1991 Ford Taurus with the title being transferred to her as her sole property, (c). The parties agree that the 1991 Ford Festiva, currently in possession of the child's daughter Kera M, Namey. shall remain in the possession of Kera M, Namey, with the title being transferred to her as her sole property, Husband and Wife agree to execute any documents necessary to effectuate the provisions of this paragraph and to hold one another harmless thereon, F. l.Ire Insurance: It is further understood and agreed by the parties as follows: -9- (a). Husband shall retain ownership of his policies on his life with ~ Ensland Life Insura~.QllUl~ ($855,00) ,Account No, 02228143 and Ml:1J,ife InsurAI1~ COmllarlY (S3,700,OO). Account No, 852146329UL. (b). Wife shall retain owncrship of her policy on her life with ~m Insurance Policy ($3,800,00), Husband and Wile agree to execute any documents necessary to cffectuate the provisions of this paragraph and to hold one another hllrmless thereon, G. Pavment to Wife: Husband agrees to pay to Wife the sum of ~2.200,OO from Husband's share of the division of the New England Mutual Funds Account. The funds are to be distributed within 15 days of execution of this Agreement. II. REAL ESTATE. Husband and Wife agreed that the marital home located at 3609 Golfview Drive, Mechanicsburg, Cumberland County, Pennsylvania be sold, The net proceeds in the amount of$35,974.46 were received and have been distributed with 60% (Sixty Percent) to Wife in the amount ofS21,584,67 and 40% (Forty Percent) to Husband in the amount of S14,389,79, 11. MEIJICAL INSURANCE. Both parties agree to continue to assume responsi~ for their own medical insurance, 13. TAX RETURNS. Wife and Husband warrant that they have paid all taxes on prior jointly filed returns including the calender year ending December 3 I, 1997; that they do not owe any interest or penalties thereon; and that no tax deficiency proceeding or audit is pending or notice thereof received, Husband shall give Wife notice of any deficiency assessment and Wife -10- ~hall give Husband notice of any deficiency a~sessment of which they individually or collectively become aware, The parties agree that should it ultimately be determined that any deficiency and/or penalty exists with respect to any jointly filed returns, Ihe party responsible for the erroneous preparation and/or non,disdosure of informal ion which has resulted in the deficiency and/or penalty, shall be solely responsible for the payment oflhe amount ultimately determined to be due, together with interest, as well as expenses that may be incurred to contest the assessment. 14. MUTUAl. CONSENT IJlVORCE. This Agreement shall operate as a full and final Selllement Agreement concerning all marilal rights of both parties in accordance with the terms herein, The Parties herelo agree that each shall contemporaneously herewith sign an Affidavit ofCo~ to a divorce pursuant to Section 3301 (c) of the Divorce Code, Counsel for Plaintiff shall prepare and promptly file the parties' respeclive At11davit's of Cons en I, a praecipe to transmit record, Waiver of Notice of Intention to Request Entry of a Divorce Decree Under Section 3301(c) of the Divorce Code and a vital statistics form, all for the purpose of obtaining an immediate Decree in Divorce, l5. TIME OF DISTRIBUTION. Except as otherwise provided for in this Agreement, the assets and interests to be transferred under and pursuant to this Agreement shall be conveyed and transferred to the respective parties immediately \.I1!Q1lthe execution of this Agreement. The parties shall cooperate by executing whatever documents are necessary to effectuate a divorce under 3301(c) or 3301(d) of the Pennsylvania Divorce Code, and this Agreement to cooperate shall be enforceable by an assumpsit action for specific performance, However, upon refusal to consent, all distributed property shall be returned to the party originally in possession, until the time of final decree, -11- 16. REI.EASE, Subject to the provisions of this Agreemelll, ~ch,l1jny has released and discharged, and by this Agrecmcnt does tor himself or hene"; and his or her heirs, legal representatives, executors, administrators and assigns, rei case, indcmnify (including aCluallegal fees) and dischargc the othcr of and from all causes of action, claims, rights, or dcmands, whatsoever in law or equity, including equitable distribution, spousal support, alimony, counsel fees, alimony pendente lite, and expcnses which either of the partics against the other ever had, now has, or may have in the future under Ihe Pennsylvania Divorce Code, liS amended, or under any olher statutory or common law, exccpt any and all causes of action for divorce and all causes of action for breach of any provisions of this Agreement. Each party also waives his or her right to request marital counseling, pursuant to 3302 of the Divorce Code, 17. WAIVERS OF ClAIMS A(iAINST ESTATES, 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 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 limitatipn, dower, courtesy, stalutory allowance, widow's allowance, right to take in intestacy, right to take against the Will of the other, and right to act as administrator or executor of the olher's estate, and any righl existing now or in the future under the Pennsylvania Divorce Code, as amended from time to time, and each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into efTectthis mutual waiver and relinquishment of all such interests, rights and claims, 18, RJ(iHT.~ ON EXECUTION. Immediately upon the execution oflhis Agreement, -12- the rights of each party againstthc other, despite their continuing marilal status, shall termjnat~ and be as if they were ncvcr marricd, 19, BREACH. In the event ofbrcach of any oflhc tcrms of this Agreement, the non-breachin!&.f!M.l)'.MllIJlb~l2lllil, as part of any award or judgmcnt against the breaching party, all costs, including actual counsel fecs paid 10 his or hcr attorney, :ZOo INCORPORATION INTO FINAl. mVORCE IJECREE, The tcrms of this Agreement shall bc incorpoIll.I~g but shall !lQ!. merg~ into the final divorce decree between the parties, The partics intend that this Agreemcnt shall be cnforceable under the Divorce Code of 1980 , as amended, and in addition, shall retain any remedies in law or in equity under this Agreement as an independent conlract. Such remedies in law or equity are specifically not waived or released, :Zl. ADDITIONAL INSTRUMENTS, Each of the smni~ shall from time to time, at the request of the other, ~~, !l.~nowledge and lktiYer to the other party, any and all further instruments that may be reasonably required 10 give full force and effect 10 the provisions of this Agreement. 1:Z. SEPARAIIII.ITY. In case any provision of this Agreement should be held to be contrary to, or invalid under, the law of any country. state or other jurisdiction, such illegality and invalidity shall not in any way affect the other provisions hereof, all of which shall continve, nevertheless, in full force and effect, and OO.l!MDiIDtID herein shall be deemed to be a separate and undisputed covenant and agreement. 13, ENTIRE A (,'REEMENT. This Agreement contains the entire understandinll of thc parties and there arc no representation~, warranties, covenants and undertakings other than -13- those expressly sel forth herein, Husband and Wife acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfaclory to them, based on the length of their marriage and other relevant factors which have been taken into consideration by the parties, Both parties hereby accept the provisions of this Agreement with respect to the division of property in lieu of and in full and final seUlement and satisfaction of all claims and demands that they may now have or hereatler have againstlhe other for equitable distribution of their property by any court of competent jurisdiction pursuant to Section 3502 of the Divorce Code or any other laws, Husband and Wife each voluntarily and intelligently waive and relinquish any right to seck a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 24. MOJ)IFlCATION ANI) WAIVER. A modification or waiver of any of the provisions of this Agreement shall be effective Q!1!y ifmade in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature, 2!l. INTENT. It is the intent of the parties by this Agreement to fully and finally foreclose any ~j!)[\ I.Q tb!HQYI1~ for relief on the basis of any statute or case law presently existing or which may exist.1I some time in the future within the Commonwealth of Pennsylvania, including but not limited to l~quitable distribution, alimony and other reliefunde,' the Pennsylvania Divorce Code, as amended This Agreement has been drafted and accepted on the basis that such -14- resort would constitute a breach under this Agreement, entitling the non-breaching party to reimbursemenl for actual counsel fees, Other Ihan as provided by the terms of this instrument, it is intended that the court shall treat the parties as if they had never entered into a marital relationship, This Agreement shall be interpreted and governed by the laws of the Commonwealth of Pennsylvania and, where such lllw is inconsistent, the terms of this instrument shall govern, 26. VO/.UNTARY EXECUTION, The provisions of this Agreement and their legal effect have been fully ~xplained to Husband ~ counsel, Sanford A. Krevsky, Esquire to Wife l1y.,her counsel, Dawn S, Sunday, Esquire, and the parties agree that the instant Agreement is equitable, that it is being enlered into volu!UJlri!y, with full knowledge of the assets of both parties, and that it is not the result of any duress or undue inl1uence, The parties acknowledge that they have been furnished with all information relating to the financial affairs of the other which has been requested by each of Ihem and/or by their respective counsel. 27. DESCRIPTIVE IIEAOIN(,X The descriptive headings Ilsed herein are for convenience only, They shall have no effect whatsoever ill determining the rights or obligations of the parties, 28. A(iREEMENT OF JJlNf)/N(i ON HEIIt'!, Except as outlined in the foregoing provisions of this document, this Agreemcnt shall bc billi!i!Jg and shall i~ to the benefit of the parties hereto, and their respective heirs, executors, administrators, successors and assigns 29. RECONCIUATION. Notwithstanding a reconciliation between the panies, this AirttIllMl_jhll~9J!tim.!~ to remain in full force and effect absent a writing signed by the parties stating that this Agreement is null and void, -15- . q,. , . ::~ , - r( '- r{ 1 ~ 4 ~ ~. I ~I ! g s ~~ > .... .. ~c ~ ~ Ifih .. .... ~3 !i ~!~ ~ . '" u '" ! .... ".. ~~ ~ . ~ > i~iJ ~ j ~:~ !;!3 II ~I l"'I . rA =1 s N III N . ra III i III i . ~ 2 . . . . A';,,;.,. , '.1 l'i\i , .' I' ,.~-- I :"J" ,'I,i1\' , "_I! \'."<!',"11" , I :,: " ~ ~ H',1.J" \ ",.' .. ,', ,..f.,_ <. IP;. .:k\\~ ' ,Ill I " ,~,i'-'l.l";'(r- ' i'.....:,.. :i",;/;-;"-'I"I'!\I!.I,'':f,Y.',,'T. I ' ":,<'1 "':-/":"-~'_::\'i::__'('i\t_;::\ "il " ",'1 ",.: )~i{;i} ,i\.;ltl~~};y.rj~1 ' . \,' ,'I}':: :,';iJ}q;:r!Wb~fi')J'(I-~~'l ~"!'II ,L,-.r\ 11,)\i::/:,'.'j, ).%lJZlJ.ftl";}/; : .. '"," ,.., ."'1, ,r, II ';./ .. dC;,'\' '" '-:'ih't" 1:1' I ,/';, ,,:\ ";"{\~:/~i,'-;I\v,vWtf; , '" .'.. \, ..:.. ,i',o ";:'j;,,/"ff, . 1 .,' .-.,-"ii'-" 'i ' '-;, '.rJ~;'I! " ,)_\:~"-':'/'1"';' ",;"j\\,'::/lj 'r~' "',17 , , , .. '. ,f.ii~-:!;~'L: ""?i:'1:!~ ;''.,.;.:j.t/,',' h,ff,.' . ,. ;. ,< , '" i ': benefits accrued by the Participant under a predecessor plan of the employer or any other defined benelll plan sponsored by the Participant's employer, whereby liability for benoflts accrued under such predecessor plan or other defined benefit plan has been transferred to the Plan, shall also be subject to the terms of this Order. Any changes In Pion Administrator, Plan Sponsor, or name of the Plan shall not affect Alternate Payee's rights as stipulated under this Order. 5. Effect of This Order as a Qualified Domestic Relations Order: This Order creates and recognizes the existence of an Alternate Payee's right to receive a portion of the Participant's benefits payable under an employer'sponsored defined benefit pension plan that is qualified under Section 401 of the Internal Revenue Code (the "Code") and the Employee Retirement Income Security Act of 1974 ("ERISA"). It is Intended to constitute a Qualified Domestic Relations Order ("QDRO") under Section 414 (p) of the Code and Section 206(d)(3) of ERISA and the Retirement Equity Act of 1984, P.L. 98,397 6. Pursuant to State Domestic Relations Law: This Order is entered pursuant to the authority granted In the applicable domestic relations laws of Pennsylvania, 7. Amount of Alternate Payee's Benefit: This Order assigns to the Alternate Payee an amount calculated using the following formula Years of Participation In the Plan during the marriage of the parties from 7/11nO to 2/15/97 Total Years of participation in Plan from 5/24/67 to 5/30/97 X Retirement Benefit X 50% 8. Cost of Living Adjustments: The Alternate Payee shall not receive a pro,rata share of any cost,of,living adjustments or othor economic improvements made to the Participant's IBM Retirement Plan (Core Benelll) on or alter the date of his retirement. 9. Commencement Date ot Payment to Alternate Payee: Since the Participant has retired and Is currently receiving bonelits under the Plan, the Alternate Payee shall commence receipt of her benefit as soon as administratively feasible following the qualification of this Order by the Plan Administrator. 10. Form of Payment to Alternate Payee: The Alternate Payee shall receive her share of the benefits described hereunder in the form of a monthly payment. 11. Length of time Benefits will be paid to the Alternate Payee: The Alternate Payee's share of the Participant's benefit shall be paid to her for the lifetime of the Participant. Upon the Participant's death, the Alternate Payeo shall begin to receive the survivor annuity, of which she has been designated as the sole survivor annuitant, for the remainder of her lifetime, The Participant's designation of the Alternate Payee as sole survivor annuitant shall be Irrevocable, 12. Death: In the event of the death of a party hereto, the Plan shall be entltied to recover any payments IlSsued on the assumption that such person was alive, In the event the Alternate Payee predeceases the Participant prior to receipt of her share of the benefits awarded In this Order, such benefits shall revert to the Participant. 13. Rights of the Alternate Payee: The Alternate Payee shall have the same rights with regard to her portion of the Participant's IBM Retirement Plan benefits as a beneficiary, 14. Small Value: If the value of the total pension three thousand five hundred dollars ($3,500) or less, or other amount as may be specified In the Plan, the Plan may make a lump sum distribution of the amount when payable under the terms and conditions of the Plan. 15. Savings Clause: This Order Is not Intended, and shall not be construed In such a manner as to require the Plan: (a) to provide any type or form of benefit option not otherwise provided under the terms of the Plan; (b) to require the Plan to provide Increased benefits determined on the basis of actuarial value; or (c) to require the payment of any benefits to the Alternate Payee that are required to be paid to another alternate payee under another order that was previously deemed to be a OORO, (d) to make any payment or take any action which Is Inconsistent with any federal or state law, rule, regulation or applicable judicial decision. 16. Certification of Necessary Information: All payments made pursuant to this Order shall be conditioned on the certification by the Alternate Payee and the Participant to the Plan Administrator of such Information as the Plan Administrator may reasonably require from such parties to make the necessary calculation of the benefit amounts contained herein, 17. Continued Qualified Status of Order: Ills the Intention of the parties that this ODRO continue to qualify as a OORO under Section 414(p) of the Internal Revenue Code, as It may be amended from time to time, and that the Plnn ,~ '.. Administrator shall reserve the right to reconfirm the qualified status of the Order at the time benefits become payable hereunder. 18. Tax Treatment of Distributions Made Under This Order: For purposes of Sections 402(a)(1) and 72 of the Internal Revenue Code. any Alternate Payee who is the spouse or former spouse of the Participant shall be treated as the distributee of any distribution or payments made to the Alternate Payee under the terms of this Order, and as such, will be required to pay the appropriate federallncom6 taxes on such distribution. 19. Constructive Receipt: In the event that the Plan Trustee inadvertently pays to the Participant any benefits that are assigned to the Alternate Payee pursuant to the terms of this Order, the Participant shall immediately reimburse the Alternate Payee to the extent that the Participant has received such benefit payments, and shall forthwith pay such amounts so received directly to the Alternate Payee within ten (10) days of receipt. 20. Effect of Plan Termination: In the event that the Plan Is terminated, whether on a voluntary or involuntary basis, and the Participant's benefits become guaranteed by the Pension Benefit Guaranty Corporation ("PBGC"), the Alternate Payee's benefits, as stipulated herein, shall also be guaranteed to the same extent In accordance with the Plan's termination rules and in the same ratio as the Participant's benefits are guaranteed by the PBGC. 21. Continued Jurisdiction: If any provision of this Order is inapplicable it shall be ignored and it shall not affect the validity of other provisions or of the Order itself. The Court shall retain jurisdiction with respect to this Order to the extent required to maintain its qualified status and the original intent of the parties as stipulated herein, 22. Responsibility of Parties: The parties shall promptly notify the Plan Administrator of any change in their addresses from those set forth in this Order. The parties shall promptly submit this Order to the Plan Administrator for determination of its status as a Qualified Domestic Relations Order. -Ec:lINAIL:'- J;~-~..lId -v: / '"