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HomeMy WebLinkAbout98-01195 .)J d .tl ~ J .... C- f .~. J tf) 0- - - , i i , . I ~I I (!f:''';' '-7"'\''t:~~~'.,' ... . WIFE and HUSBAND, each Intending to be legally bound hereby, covenant and agree as follows: 1. INCORPORATION OF PREAMBLE. The recitals set forth In the Preamble of this Agreement are incorporated herein and made a part hereof as If fully set forth In the body of the Agreement. 2. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS. This Agreement shall not be considered to affect or bar the rights of HUSBAND and WIFE to an absolute divorce on lawful grounds If such grounds now exist or shall hereafter exist or to such defense as may be available to either party. This Agreement Is not Intended to condone and shall not be deemed to be condonation on the part of either party hereto of any act or acts on the part of the other party which have occasioned the disputes or unhappy differences which have occurred or may occur subsequent to the date hereof. The parties acknowledge that their marriage Is irretrievably broken and that they shall secure a mutual consent no-fault divorce pursuant to the terms of Section 3301 (c) of the Divorce Code in HUSBAND's Cumberland County divorce action docketed to number 96.1195. Upon the signing of this Agreement, the parties shall execute and l1Ie all documents and papers. Including affidavits of consent, necessary to finalize said divorce. 3. EFFECT OF DIVORCE DECREE...l The parties agree that unless othelWlse specifically provided herein, this Agreement shall continue In full force and effect after such time as a final Decree In Divorce may be entered with respect to the parties. 2 ( .. , . 4. AGREEMENT TO BE INCORPORATEDJ.tf..IDVORCE DECREE. The parties agree that the terms of this Agreement shall be Incorporated Into any Divorce Decree which may be entered with respect to them. 5. NQN'MERGER. It Is the parties' Intent that this Agreement does not merge with the Divorce Decree. but rather shall continue to have independent contractual significance. Each party maintains his or her contractual remedies as well as court ordered remedies as the result of the aforesaid Incorporation or as otherwise provided by law or statute. Those remedies shall include, but not be limited to. damages resulting from breach of this Agreement, specific enforcement of this Agreement and remedies pertaining to failure to comply with an order of court or agreement pertaining to equitable distribution, alimony. alimony pendente lite, counsel fees and costs as set forth In the Pennsylvania Divorce Code or other similar statutes now in effect and as amended or hereafter enacted. 6. DATE OF EXECUTION. . The 'date of execution" or "execution date" of this Agreement shall be defined as the date of execution by the party last executing this Agreement. 7. DISTRIBUTION DAN, The transfer of property. funds and/or documents provided for herein shall only take place on the 'distribution date" which shall be defined as the date of execution of this Agreement unless otherwise specified herein. 3 . ... . 8. ADVICE OF COUNm, The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Charles Rector, Esquire for HUBAND, and an attomey to be selected by WIFE. The parties acknowledge that they have received Independent legal advice from counsel of their selection and that they fully understand the facts and have been fully Informed as to their legal rights and obligations and they acknowledge and accept that this Agreement Is. In the circumstances, fair and equitable and that It Is being entered Into freely and voluntarily. after having received such advice and with such knowledge and that execution of this Agreement Is not the result of any duress or undue Influence and that It is not the result of any collusion or Improper or Illegal agreement or agreements. 9. FINANCIAL DISCLOSURE. The parties conflrm that each party has made a full and fair disclosure to the other of all of their assets. debts and incomes and that each has relied on the substantial accuracy of the flnanclal disclosure of the other. as an inducement to the execution of this Agreement. 10. PISCLOSURE AND WAIVER OF PROCEDURAL RIGHTS. Each party understands that he or she has the right to obtain from the other party a complete Inventory or list of all of the property that either or both parties own at this time or owned as of the date of separation. and that each party has the right to have all such property valued by means of appraisals or otherwise. Both parties understand that they have the right to have a court held hearings and make decisions on the 4 ,,---,,'-/1 ..' '... .' .d_c matters covered by this Agreement. Both parties understand that a court decision concerning the parties' respective rights and obligations might be different from the provisions of this Agreement. Each party hereby acknowledges that this Agreement Is fair and equitable, that It adequately provides for his or her needs and Is In his or her best Interests, and that the Agreement is not the result of any fraud, duress, or undue Influence exercised by either party upon the other or by any other person or persons upon either party. Both parties hereby waive the following prncedural rights: a. The right to obtain an Inventory and appraisement of all marital and non- marital property as defined by the Pennsylvania Divorce Code. b. The right to obtain an Income and expense statement of the other party as provided by the Pennsylvania Divorce Code. c. The right to have property identified and appraised. d. The right to discovery as provided by the Pennsylvania Rules of Civil Procedure. e. The right to have the court determine which property Is marital and which Is non-marital, and equitably distribute between the parties that property which the court determines to be marital, and to set aside to a party that property which the court determines to be that parties' non-marital property. f. The right to have the court decide any other rights, remedies. privileges, or obligations covered by this Agreement and/or arising out of the marital relationship, Including but not limited to possible claims for divorce, child or spousal support. alimony, 5 f, alimony Pendente Lite (temporary alimony), equitable distribution, custody. visitation, and counsel fees, costs and expenses, 11. PER~ONAL PROPERTY. The parties acknowledge that they have previously agreed to a division of all of their tangible personal property Including. but not limited It, jewelry, clothes. fumlture. furnishings, rugs, carpets. household equipment and appliances, tools, pictures. books, works of art and other tangible personal property. With respect to said division the parties agree that HUSBAND shall receive as his sole and separate property all items currently In his possession and WIFE shall receive as her sole and separate property all Items of tangible personal property In her possession. Each of the parties hereto does waive, release. and forever abandon any right and all title. interest and claim. In and to the tangible personal property to become the property of the other party pursuant to the terms of this paragraph. To the extent that certain items of personal property have not yet been divided by the parties, the parties shall comply with the designation of Items attached hereto as Exhibits "A" and "B," which exhibits shall control distribution of the items contained therein. 12. ArnR.ACQUIRED PROPERTY, Each of the parties shall hereafter own and enjoy, Independently of any claim or right of the other. all property. tangible or Intangible, real, personal or mixed, acquired by him or her, with or without non-marital assets, after the date of this Agreement, with full power In him or her to dispose of the same as fully and effectively, In all respects and for all purposes. as though he or she were unmarried and each party hereby waives, 6 -. . releases, renounces and forever abandons any right, title, Interest and claim In and to said after acquired property 01 the other party pursuant to the terms of this paragraph. 13. DIVISION OF VEHICLES, With respect to the vehicles owned by one or both of the parties, or the net proceeds or value derived fmm any prior sale or trade In thereof, they agree as follows: WIFE waives all right, title and Interest she may have in the 1966 Pontiac and the 1998 Sonoma truck to HUSBAND and HUSBAND shall assume full responsibility for all remaining payments due and owing on the 1998 Sonoma truck and he shall indemnify and hold WIFE hamlless from any payments due and owing thereon. WIFE further waives all right. title and Interest she may have in HUSBAND's boat and HUSBAND shall indemnify and hold WIFE harmless from any payments due and owing thereon. HUSBAND waives all right. title and Interest he may have In the 1996 Geo Metro to WIFE and WIFE shall Indemnify and save HUSBAND harmless from the remaining payments due and owing thereon and she shall assume full responsibility for said payments. Except that WIFE shall not formally execute title documents to the 1998 Sonoma truck, the 1966 Pontiac or the boat until such time as she receives the first $1,000.000 of the amounts to be paid to her pursuant to Paragraph 15 of this Agreement. The titles or assignment of any lease agreements to said vehicles shall be executed by the parties. if appropriate. for effectuating transfer as herein provided on the date of execution of this Agreement and said executed titles/assignments shall be delivered to the proper party on the distribution date. For purposes of this Paragraph 7 . the term 'title' shall be deemed to Include 'power of attorney' If the title or lease agreement to the vehicle Is unavailable due to financing arrangements or otherwise. In the event any vehicle Is subject to a lien, encumbrance, lease or other Indebtedness In the party receiving said vehicle as his or her property shall take It subject to said lien, encumbrance, lease or other Indebtedness and shall be solely responsible therefor and said party further agrees to Indemnify, protect and save the other party harmless from said lien, encumbrance, lease or other Indebtedness, Each of the parties hereto does specifically waive, release, renounce and forever abandon whatever right, title and Interest he or she may have In the vehicle(s) that shall become the sole and separate property of the other pursuant to the terms of this Paragraph. 14, DIVISION OF REAL ESTATE, The parties acknowledge owning the property known and numbered as 416 Herman Avenue, Lemoyne, Cumberland County, Pennsylvania, 17043, as tenants by the entireties. As an Interim resolution of their marital difficulties HUSBAND shall assume full responsibility for all costs associated with his exclusive possession of the marital home after September 15, 2000. He shall indemnify WIFE and hold her harmless from any liability therefore during his occupancy of the property. WIFE shall execute and deliver to HUSBAND a special warranty deed conveying all of her right, title and Interest In and to said property to HUSBAND contemporaneously upon settlement of HUSBAND's assumption of, or release of WIFE from, the first mortgage obligation subject to the additional promises set forth In Paragraph 15. 8 ",._C'.."~'.-; .. " 16, M.9!if!TARY PAYMEt!L In consideration of the distribution of the marital aSl\etll set forth In this Agreement, and In further consideration of WIFE's waiver of her Interest to HUSBAND of the marital home, HUSBAND agrees to pay WIFE a non-taxable lump sum equitable distribution payment equivalent to one-half of the net equity existing in the marital home consistent with the terms of this paragraph plUG the sum of $4,174.00. The payment to WIFE equivalent to Yo of the home equity shall be paid to WIFE within twelve (12) months of the date of execution of this Agreement at 0.00% Interest. The equity existing In the marital home shall be determined either at the time of refinancing or within twelve (12) months following execution of this Agreement based upon its' then fair market value. HUSBAND shall be reimbursed for the cost of all materials necessary for Improvements to the home to Increase Its' market value. Prior to expenditures being made by HUSBAND, the parties shall agree In writing to such Improvements. These amounts shall first be credited to HUSBAND prior to equal division of the net equity to the parties. The remaining amount of $4,174.00 shall be paid by HUSBAND to WIFE within sixty (60) months of the date of this Agreement at 0.00% Interest. In the event that the parties are unable to agree as to the fair market value of the property, the parties shall select an appraiser, whose fee shall be paid In equal shares by the parties hereto. In the event that the parties are unable to agree upon an appraiser, each party shall select an appraiser. The two appraisers selected by the parties shall designate a third appraiser, whose apprali'lal shall be binding on the parties hereto. In the event that HUSBAND Is unable to obtain financing within twelve (12) 9 become the sole and exclusive property of WIFE. Each of the parties does specifically waive, release, renounce and forever abandon whatever right, title, Interest or claim, he or she may have In any bank account, certificates of deposit, IRA account, bonds, shares of stock, investment plans and life Insurance cash value that Is to become the sole and separate property of the other pursuant to the terms hereof. 18. MARITAL DEBTS, The parties acknowledge that they have previously divided the obligations and payments required thereof of any debts and obligations arising during the marriage and In accordance therewith any obligation being paid by a party shall continue to be so paid and said party shall Indemnify, protect and save the other party harmless therefrom. A liability not disclosed in this Agreement will be the sole responsibility of the party who has incurred or may hereafter Incur It, and each agrees to pay It as the same shall become due. Each party agrees to Indemnify and hold the other party and his or her property harmless from any and all such debts, obligations and liabilities assumed by a party pursuant to this Paragraph. From the date of execution of this Agreement, each party shall use only those credit cards and accounts for which the party Is individually liable and the parties agree to cooperate In closing any remaining accounts which provide for joint liability. 19, WAIVER OF INHERITANCE. Each of the parties hereto does specifically waive, release, renounce and forever abandon any right, tille, Interest or claim, If any, either party may have In and to any II Inheritance of any kind or nature whatsoever previously or In the future received by the other party, 20, WIFE'S DEfITl. WIFE represents and warrants to HUSBAND that since the parties' marital separation she has not contracted or Incurred any debt or liability for which HUSBAND or his estate might be responsible and WIFE further represents and warrants to HUSBAND that she will not contract or incur any debt or liability after the execution of this Agreement, for which HUSBAND or his estate might be responsible. WIFE shalt Indemnify and save HUSBAND harmless from any and all claims or demands made against him by reason of obligations Incurred by her. 21. HUSBAND'S DEBTS. HUSBAND represents and warrants to WIFE that since the parties' marital separation he has not contracted or Incurred any debt or liability for which WIFE or her estate might be responsible and HUSBAND further represents and warrants to WIFE that he will not contract or Incur any debt or liability after the execution of this Agreement, for which WIFE or her estate might be responsible. HUSBAND shall Indemnify and save WIFE harmless from any and all claims or demands made against her by reason of debts or obligations Incurred by him. 22. SOCIAL SECURITY BENEFITS, The parties agree that subject to the rules and regulalions of the Social Security Administration, each of the parties shall conlinue to be eligible fm Social Security benefits to which he or she would ordinarily be qualified as a party to a divorce after a 12 14 28, fS.~ONAL RIGH~ HUSBAND and WIFE may and shall, at all times hereafter, live separate and apart, They shall be free from any control, restraint, Interference or authority, direct or Indirect, by the other In all respects as fully as If they were unmarried. They may reside at such place or places as they may selecl. Each may, for his or her separate use or benefit, conduct, carry on and engage in any business, occupation, profession or employment which to him or her may seem advisable. HUSBAND and WIFE shall not molest, harass, disturb or malign each other or the respective families of each other nor compel or attempt to compel the other to cohabit or dwell by any meanr, or In any manner whatsoever with him or her. 27. MUTUAL RELEASES, HUSBAND and WIFE each do hereby mutually remise, release, quitclaim and forever discharge the other and the estate of such other, for all time to come, and for all purposes whatsoever, from any and all rights, title and Interest, or claims In or against the property (Including Income and gain from property hereafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situate, which he or she now has or at any time hereafter may havll against such other, the estate of such other or any part thereof, whether arising out of anI' former acts, contracts, engagements or liabilities of such other or by way of dower or courtesy, or claims In the nature of dower or courtesy or widow's or widower's rights, family exemption or similar allowance, or under the intestate laws, or the right to take against the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of surviving spouse to participate In a deceased spouse's estate, whether arising under the laws of (a) the Commonwealth of Pennsylvania, (b) State, Commonwealth of territory of the United States, or (c) any other country, or any rights which either party may have or at any time hereafter have for past, present or future support or maintenance, alimony, alimony pendente lite, counsel fees, equitable distribution, costs or expenses, whether arising as a result of the marital relation or otherwise, except, and only except, all rights and agreements and obllgallons of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision thereof. It Is the Intention of HUSBAND and WIFE to give to each other by the execution of this Agreement a full, complete and general release with respect to any and all property of any kind or nature, real, personal or mixed, which the other now owns or may hereafter acquire, except and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provisions thereof. 28. WAIVER OR MODIFICATION.TO BE IN WRrnNG. No modification or waiver of any of the terms hereof shall be valid unless In writing and signed by both parties and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 29. MUTUAL C,QOPERATION. Each party shall, at any time and from time to time hereafter, take any and all steps and execute, acknowledge and deliver to the other party, any and all further 15 . . Instruments and/or documents that the other party may reasonably require for the purpose of giving full force and effect to the provisions of this Agreement. 30. AGREEMENT !ill!.PING ON HEIRS. This Agreement shall be binding and shall Inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 31. INTEGRATION. This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties other than those expressly set forth herein. 32, OTHER DOCUMENTATION. WIFE and HUSBAND covenant and agree that they will forthwith (and within at least twenty (20) days after demand therefor), execute any and all written Instruments, assigns, releases, satisfactions, deeds, notes, stock certificates, 01' such other writings as may be necessary or desirable for the proper effectuation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry out fully and effectively the terms of this Agreement. 33. 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. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall In no way affect the right to such party hereafter to enforce the same, nor shall the waiver of any 16 , , subsequent default of the same or similar nature, nor shall It be construed as a waiver of strict performance of any other obligations herein, 34, BREACH. If for any reason either HUSBAND or WIFE falls to perform his or her obligations hereunder owed to or for the benefit of the other party and/or otherwise breaches the terms of this Agreement, then the other party shall have the following rights and remedies, all of which shall be deemed to be cumulative and not In the alternative, unless said cumulative effect would have an Inconsistent result or would result in a windfall to the other party. (a) the right to specific performance of the terms of this Agreement, In which event the non-breaching party shall be reimbursed for all reasonable attorney's fees and costs incurred as the result of said breach and in bringing the actlol1 for specific performance. (b) the right to damages arising out of the breach of the terms of this Agreement, which damages shall include reimbursement of all attorney's fees and costs Incurred as the result of the breach and In bringing the damage action. (c) the right to all remedies set forth in Section 3502(e) of the Pennsylvania Divorce Code, 23 Pa.C.S.A. 3502(e), and any additional rights and remedies that may hereafter be enacted by virtue of the amendment of said Section or replacement thereof by any other similar laws, which remedies shall Include, but not be limited to: (1) the entry of judgement; 17 . , (2) the authorization of the taking and seizure of goods and chattels and collecllon of rents and profits of real and personal and tangible and Intangible property; (3) the transfer and sale of any property required to obtain compliance with the obligations undertaken by this Agreement; (4) the posting of security to Insure future payments to assure compliance with the obligations undertaken by this Agreement; (5) the Issuance of attachment proceedings and the holding of the Defendant to be In contempt and the making of appropriate order thereof Including, but not limited to, commitment oflhe breaching party to county Jail for a period not to exceed six (6) months; (6) the award of counsel fees and costs; (7) the a'l1achment of the breaching party's wages. (d) Any other remedies provided for In law or in equity, 35. SEVERABILlTX If any term, condlllon, clause or provision of this Agreement shall be determined or declared to be void or invalid In law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and In all other respects this Agreement shall be valid and continue In full force, effect and operation, Likewise, the failure of any party to meet his or her obllgallons under anyone or more of the paragraphs herein, with the excepllon of the satisfaction of the condillons precedent, shall In no way avoid or alter the remaining obligations of the parties, 18 '.- m C i , " y: " r!<J -, .,( , , i -) , i: , :::i: , , 'j , L ~,. i/~ '. I " .' , . j Ct.', , , . 'I(J. ~;. .!; <,. .. ) tL) ,~'I i:.J ~ . , . , ., GREGORY V. MIKOLAJCZAK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 98-1195 CIVIL TERM CIVil ACTION. lAW IN DIVORCE V, ELAINE C. MIKOLAJCZAK, Defendant PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record together with the following information, to the Court for entry of a divorce decree: 1, Ground for ~ divorce: Irretrievable breakdown under Section 3301 (c) of the Divorce Code, 2, Date and manner of service of the Complaint: Personal Service - 03/09/98. 3. Complete either paragraph (a) or (b), (a) Date of execution of the affldevlt of consent required by Section 3301 (c) of the Divorce Code: by the Plaintiff 05/01/01, by the Defendant \24/05/01, (b) (1) Date of execution of the plaintiffs affidavit required by Section 3301(d) of the Divorce Code: (2) Date of service of the plaintiff's affidavit upon the Defendant: 4. Related claim pending: !'lone, 5. Complete either (a) or (b) (a) Date and manner of service of the notice of Intention to file praecipe to transmit record, a copy of which Is attached, If the decree Is to be entered under section 3301 (d) of the Divorce Code: (b) Date Plaintiff's Waiver of Notice In ~ 3301(c) Divorce was flied with the Prothonotary 05/02/01 Date Defendant's Waiver of Notice In ~ 3301(c) was flied with the Prothonotary 05/02/01. CbCt~~b)~~1:tc( ,~ Charles Rector, Esquire Attorney for the Plaintiff Date: 05/03/01