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HomeMy WebLinkAbout98-01691 ~I ....s; i -,. 1 "", L31 vi &1 I i . I ~i II I fl I ~" ,E\ .\ \ \ \ \ \ ! i / I f " '\ 1 .I l l "' if" .iff- #" ,. ~ ~I JI - () ..9 - . ~ ~I - j; W '.' ,', * " '.' ~ ,.- If! ... ~ " ~ ~ ~ " ... " ... " ... " ... " ... ~ ~ ,.' " ~ III ... " ~ 8 ~ ~!_-~,. ~:. ->>:. ... a__~~.~.~.~~*_~~~.~.*_~.~*.~.).~:_;:__.~,.~*_~~_.~~ ~..''''''''''. .C C . . c. "" c ','.""",... ." ,'c " " " . ".., . ~ . ~ IN THE COURT OF COMMON PLEAS ~ ~ ~ ~ OF CUMBERLAND COUNTY STATE OF ,* PENNA 8 ~i ~I ~ " ... " ... N (). .....(U)~Hi91..". 1998 ~ W r.> JOANNE L,.McCARTHY V"I'SII,' ~ '.' " ~ rI. '.' JAMES p, McCAR~HY ;;; ~ DECREE IN DIVORCE AND NOW, '" .p>,~~~b(),. ,2,..3:.",., 19,9,(3:" it is ordered and decreed that",.... .. .JOA.Nfo!~, !--.', .~9cl\~T!'I.X,.... ....,....... plaintiff, and. ,."" .. '..,.... ., J.AMES. .~',. M.CCART.HY,.,.,..,... """, 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 0 final order has not yet been entered; . N~. . i ss.u.~s. p.el)din.<;{ ~ . ,All. ,i~!j\le.s.J:lilye ,1;>~~.1'1 ,f~.s,Q.]. y~,q .Pll,r,EII,Iilll.t. ,t\l ,!'l!i.r:J;'~llgE!, $~.t,t,.].eJ11,Elnt. AgJ;'l'lamenl;, .betw,eeo. ,the, part ie,s .da.t.ed, Dec6Imber 9, 1998 which Agreement is to be incorporated into, but not merged ~ with th Divorce Decree. II y Tile ~!)~t/(/ () it. i, . ^",,,,, dad" ,<,,~ /?~~, Kp~11~l K ~,..{) nz / ' ,. ~h{J1101i\I'Y iW .:+:. <.:- .:.:. <+> -:+;. .:.;. .:.:. .:+:. .~+:- .~.:.' ,', * ~ " ... ~ ,', ~ " " ~ ,', ~ " '" " ~ ~ w '" f~' " " ~ w ~.~ ~ i '.~ t:.~ ~ ,', * ,-" ~ ~ '.' ~ 1':' ~ ~ ',' ~ ',' ~ ',' "* ;', ~ (~ l' . , i~ ~ ~ '.' ,', t DIANE Q, RADCLIFF 3448 TRINDlE ROAD CAMP Hill, PA 17011 (717) 737.0100 maintenance of WI [o'E by HUSBAND or of HUSBAND by WI FfI; and in general, the settling of any and all claims and possible claims by one against the other or against their respective estates, NOW, THERE~'ORE, in consideration of the premises and mutual promises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, WIFE and HUSBAND, each intending to be legally bound hereby, covenant and agree as follows: 1 . .INC.QR1'QRAUON_OLJ'REAMBLE l. 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 N~_~O-...DL'l[QRCLl'RO.cEEDINGaL This Agreement shall not be considered to affect or bar the right 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 Idlich have occasioned the disputes or unhappy differences which have occurred or may occur subsequent to the date hereof. 3 . DIVORCE DECREE I The parties acknowledge that their marriage is irretrievably broken and that they will secure a mutual consent no-fault divorce decree in WIFE's Cumberland County divorce action docketed to number 98-1691 Civil Term. Upon Page 2 of 23 ..' the execution of this Agreement the parties shall execut.e and file all documents and papers, including affidavits of consent, necessary to finalize said divorce. If either party fails or refuses to finalize said divorce or eXecute and file the documents necessary to finalize the divorce, said failure or refusal shall be considered a material breach of this Agreement and shall entitle the other party at his or her option to terminate this Agreement, in which event the parties shall be placed in the same legal position they would have been but for this Agreement, 4 . EUEC~_.DIV.QRCELDECREEl Unless otherwise 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. 5. AGRE:EM1lli'L.TCL.BL.INC'.ORE.ORATED._.IN.-DIVORClLDECREE.t The terms of this Agreement shall be incorporated into any Divorce Decree which may be entered with respect to them. 6. NON-MERGERL This Agreement shall not merge with the Divorce Decree, but rather, it continues to have independent contractual significance and each party maintains their contractual remedies as well as court remedies as the resul t of the aforesaid incorporation or as otherwise provided by law or statute. DIANE G, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, FA 17011 (717) 737,0100 Page 3 of 23 DIANE Q, RADCLIFF 3448 TRINDlE ROAD CAMP Hill, PA 17011 (717) 737.0100 7 . DA'1'E_OF.EXB.CUT~ON: 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. 8. I2lS'l'RIBllTIQlLDA'l'E1 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. 9 . V.QLllNl'ARLEXECmON,.ANlLFAIRNB.SS...QF_.AGREEMEN'l'.1 Each party acknowledges that this Agreement has been entered into of his or her own volition, with full knowledge of the facts and full disclosure of their separate and joint estates, and that EOach bel ieves this Agreement to be reasonable under the circumstances. Further, HUSBAND acknowledges that he has been advised of his rights to be advised by an attorney of his own choosing prior to entering into this Agreement and that he voluntarily has dec:lded not to retain such counsel, and further acknowledges that he accepts said Agreement and that said acceptance is not based on any advice or representation made by WIFE's counsel, Diane G. Radcliff, Esquire, has any such nor advice and/or representation been given to him by said counsel. 10. FINAl{CIAL-DlScr&allRlU The parties confirm that each has relied on the substantial accuracy of the financial disclosure of the other, as an inducement to the execution of this Agreement and each party acknowledges that there has been a full and fair Page 4 or 23 DIANE Q, RADCLIFF 3448 TRINDLE ROAD CAMP Hill, PA 17011 (7171737-0100 disclosure of the parties 1 marl, tal assets which has been provided to each party, 11 . DIsm:.OSURILANlLjiAI'lER--OF_..PMCEDURAL.-_RIGH'l'S_L 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 paJ;ty has the right to have all such property valued by means of appraisals or otherwise. Both parties undel-stand that they have the right to have a court hold hearings and make decisions on the matters covered by this Agreement, Both parties understand that a court dec!sion 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 equi table, 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. Given said understanding and acknowledgment, both parties hereby waive the following procedural rights: a. The right to obtain an inventory and appraisement of all marital and separate property as defined by the Pennsylvania Divorce Code. b. The right to obt:ain an income and expense statement of the other party as provided by the Pennsylvania Divorce Code. Puge 5 of 23 DIANE G, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 1'1011 (717) 737,0100 o. 1'he right to have any discovery as may be permitted by the Rules of Ci vi! Procedure, The right to have the court determine which property is marital and which is non-marital, and equitably d. distribute between the parties that property which the court determines to be marital. e. The right to have the court decide any other rights, remedies, privileges, or obligations covered by this Agreement:, including, but not limited to, possible claims for divorce, spousal support., alimony, alimony pendente lite (temporary alimony), and counsel fees, costs and expenses. 12. ~ERSQNAJ.,-2RQPER'l1t HUSBAND and WI FE: do hereby acknowledge that they have previously divided t.heir tangible personal property including, but limitation, jewelry, clothes, furniture, without furnishings, household equipment and rugs, carpets, appliances, tools, pictures, books, works of art and other personal property and hereafter the parties agree that said property shall be distributed in accordance with the distribution set forth on Exhibit "A" attached hereto. The parties do hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to the above items which shall become the sole and separate property of the other. 13. AFI'Elt:ACQUIRED PRQllERTYJ. Each of the parties shall hereaftel" own and enj oy, independently of any claim or right of the other, all Page (i or 23 "I t t, ' \ ' ." ri ,I a . property, tangible or intangible, real, personal or m.i.xed, acquired by h.i.m or her, since August 15, 1997, the date of the parties' marital separation, with full power in him or her to d.i.spose of th~ 8ame as fully and effectively, in all respects and for all purposes, as though he or she were unmarried and each party hereby waives, releases, renounces and forever abandons any right, title, interest and claim in and to said afteT acquired property of the other party pursuant to the terms of this paragraph. 14. DIVISI.Ql'L~.E'__'IlE}lI.CLES_t With respect to the vehicles owned by one or both of the parties, they agree as follows: a. 1996 Dodge Stratus shall be the sole and exclusive property of WIFE. b. 1991 Plymouth Sundance shall be the sole and exclusive property of HUSBAND, The titles 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 shall be delivered to the proper party on the distribution date. For purposes of this Paragraph the term "title' shall be deemed to include "power of attorney" if the title to the vehicle is unavailable due to financing arrangements or otherwise. In the event any vehicle is subject to a lien or encumbrance the party receiving said vehicle as his or her property shall take it subject to said lien and/or encumbrance and shall be solely responsible therefor and said party further agrees to indemnify, protect DIANE Q, RADCLIFF 3448 TRINDlE ROAD CAMP Hill, PA 17011 1717) 737.0100 Page 7 of 23 . and save the other party harmless from said lien or encumbrance. Each of the parties hereto does specifically wai ve, release, renounce and forever abandon whatever right, title and interest they may have in the vehicles that shall become the sole and separate property of the other pursuant to the terms of this Paragraph, 15. D.I'lIaIQ}LQF-REAILEaTA'l'E~ The parties are the owners as tenants by the entireties of a certain tract of real estate located at 226 Walnut Street, Lemoyne, Cumberland County, Pennsylvania having an eFltimated fair market value of $99,000,00 and subject to a mortgage wi th PNC having a balance of approximately $61,702.00. With respect to the real estate and mortgage the parties agree as follows: a. WIFE shall make, execute and deliver all documents in the usual form conveying, tranSferring and granting unto HUSBAND all of her right, title and interest in and to said real estate, The deed of conveyance shall be executed by WIFE and delivered to HUSBAND upon the payment of the sum of $18,649.00 and the refinance of the PNC mortgage is hereinafter provided. b. Within 10 days of the date of this Agreement, HUSBAND shaIl apply for refinance of the PNC mortgage. Proof of the application for said refinancing shal1 be provided to WIFE by HUSBAND within five days after the date of said application, HUSBAND shall complete settlement on said refinancing within 60 days of the date of the application. At settlement on the said refinance, DIANE Q, RADCLIFF 3448 TRINDlE ROAD CAMP Hill. PA 17011 1717) 737.0100 Page 8 of 23 HUSBAND shall payoff. the entire balan_~e owing on the PNC mortgage. c. Wi thin 60 days of the date of this Agreement. and concurrently with settlement on t.he refinancing of the PNC mortgage, HUSBAND shall pay WI FE the sum of $18,649.00 for her interest in the real estate. d. Concurrently with the refinancing and the payment of the sum of $18,649.00 by HUSBAND to WIFE, WIFE shall execute and deliver the deed of conveyance to the real estate to HUSBAND. e. In the event HUSBAND is unable to secure the refinancing wi thin sixty days of the date of this Agreement or shall fail to apply for the refinancing or shall fail to make the payment of $18,649,00 to WIFE all as heretofore provided then the real estate shall be listed for sale with a q~lalified real estate broker and sold at the best price attainable, Upon the sale the mortgage shall be paid off and the net pl"oceeds derived shall thereupon be divided equally between the parties, f. From and after the date of this Agreement, HUSBAND shall be solely responsible for the payment of any and all bills and expenses pertaining to the real estate including but not limited to the payment of the mortgage installment, utilities, taxes, insurance, and reasonable maintenance and shall indemnify, protect and hold WIFE harmless from any and all liability thereunder, If HUSBAND shall fail to timely pay (within 30 days of the due date) the installments due under the mortgage, the DIANE 0, RADCLIFF 3448 TRINDLE ROAD CAMP HILI" PA 17011 17171731,0100 Pugc 9 of 23 DIANE Q, RADCLIFF 3448 TRINDLE ROAD CAMP HILI" PA 17011 (717) 737,0100 real estate shall be sold in accordance with the terms of subparagraph (d) above and shall be sold and the proceedn distributed in accordance with subparagraph (d) above. 16. ~AIN~LQmLI'ENSIoN PLANal Each of the parties does specifically waive, release, renounce and forever abandon all of their right, title, interest or claim, whatever it may be, in any Pension Plan, Retirement Plan, Profit Sharing Plan, 401-K Plan, Keogh Plan, Stock Plan, Tax Deferred Savings Plan and/or any employee benef i t plan of the other party, whether acquired through said party's employment or otherwise, and hereafter said Pension Plan, Retirement Plan, Savings Plan, Tax Deferred Savings Plan and/or any employee benefit plan shall become the sole and separate property of the party in which name or through whose employment said plan is carried. As clarification for the foregoing, it is understood and agreed that HUSBAND shall retain as his sole and separate property his IRA account representing a rollover of his retirement plan from American Golf Corporation and his Hershey Country Club 401K plan and WIFE shall retain as her sole and separate property her Capital Blue Cross 401K plan, 17. Ill'lISION QF__BANlCACOOUNTS/ST.OCKLLIF_ELINSlmANCE-l The parties acknowledge and agree that they have previously divided to their mutual satisfaction all of their bank accounts, certificates of deposit, IRA accounts, bonds, shares of stock, investment plans and life insurance cash value and hereafter WIFE agrees that all said bank accounts, certificates of deposit, IRA accounts, bonds, shares of stock, Page 10 or 23 DIANE G, RADCLIFf 3448 TRINDlE ROAD CAMP Hill. PA 17011 17171737,0100 investment plans and life insurance cash value in the pos~lessJon of HUSBAND shall become the sole and separate property of HUSBAND; and HUSBAND agrees that all the said bank account.[J, certificates of deposit, IRA accounts, bonds, shares of stock, investment plans and life insurance cash value in the possession of WIFE shall become the sole and separate property of WIFE. Each of the parties does specif ically waive, release, renounce and forever abandon whatever right, title, interest. or claim, he or she may have in any bank account, cert. i f icates of deposit, IRA accounts, bonds, shares of stock, investment plans and life insurance cash value that is to become the sole and separate property of the other pursuant t:o the terms hereof, The foregoing notwithstanding, or as clarification thereto, the parties agree that HUSBAND shall retain as his sole and separate property his Member's lH' savings account and WIFE shall retain as her sole and separate property her Member's lAt savings account and that there shall be no further distribution of said accounts between the parties. Further all other accounts shall remain divided as is with each party retaining his or her checking account and/or Christmas Club account upon which he or she has been listed as the primary holder. 18 . WAIY.ER__QL.INHERI'l'AHC.E-1. Each of the part ies hereto does spec if ically waive, release, renounce and forever abandon any right, title, interest and claim, if any, either party may have in and to Page 11 of 23 DIAN~ Q, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 17011 (111) 131-0100 any inheritance of any kind or nature whatsoever previously or in the future received by the other party. 19 . WIF.&!.B--DEliT.B.1 WIFE represents and warrants to HUSBAND that oince the parties' marital separation she has not cont:racted 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 shall indemnify and save HUSBAND harmless from any and all claims or demands made against him by reason of debts or obligations incurred by her. 20. au.sB~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 agaillst her by reason of debts or obligations incurred by him. 21 . MARI'l'Al<..J:lEB,T-l_ During the course of the marriage, HUSBAND and ~lIFE have incurred certain bills and obligations and have amassed a " variety of debts, and it is hereby agreed, without Page 12 of 23 ascertidning for what purpose and to whose use each of the bills were incurred, the parties agree as follows: a. WIFE shall be solely responsible for the following bills and debts: 1, Any and all debts, liabilities and obligations currently held in WIFE's 80le name, b. HUSBAND shall be solely responsible for the following bills and debts: 1. Any and all debts, liabilities and ob1.igations currently held in HUSBAND's sole name. Each party agrees to hold the other harmless from any and all liabi1.i ty which may arise from the aforesaid bills which pursuant to the terms herein are not the responsibility of the other party. Any joint debt shall be canceled so that neither party can make any further charges thereunder and if said charges are made in violation of this Agreement than the party incurring said charge shall immediately repay the same. Any liability not disclosed in this agreement shall be the sole responsibility of the party who has incurred or may hereafter incur it, and the party incurring or having incurred said debt shall pay it as it becomes due and payable. From the date of this Agreement, each party shall only use those credit card accounts or incur such further obligations for which that party is individually and solely liable and the parties shall cooperate in closing any remaining accounts which provide for joint liability. DIANE Q, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 17011 (717) 737,0100 Page 13 of 23 DIANE O. AMCLlFF 3448 TAINDlE AQ, ,D CAMP Hill, PA 17011 (717) 737-0100 22. E1ANKRUP~T~Y: The parties hereby agree tha~ the provisJ.ons of this Agreement shall not be dischargeable in bankruptcy and expressly agree to reaffirm any and all obligations contained herein. In the event a party files such bankruptcy and pursuant thereto obtains a discharge of any obI igations assumed hereunder, the other party shall have the right to terminate this Agreement in which event the division of the parties I marital assets and all other rights determined by this Agreement shall be subject to court determination the same as if this Agreement had never been entered into. 23. INCOMlLTAX PIUQK~E'1'JlRN~ The parties have heretofore filed joint federal and state returns, Both parties agree that in the event any deficiency in federal, state or local income tax is Pl"oposed, 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 therewi th. Such tax, interest, penal ty or expense shall be paid solely and entirely by the individual who is finally determined to be the cause of the miorepresentations or failures to disclose the nature and extent of his or her separate income on the aforesaid joint returns. 24 . F-INAL...~Q.ull'ABLLDISTRnUI'1'ION--OF_~1'RQ~ The parties agree that the division of all property set forth in this Agreement is equitable and in the event an action in divorce is commenced, both parties relinquish the right to divide said property in any manner not consistent rllga 14 of 23 wi th t.he terms set forth herein. It is further the intent, . understanding and agreement of the parties that this AgTeement is a full, final, complete and equitable property division. 25 . I'lAIV~ OF _ ALIMONY, ,SPOUSAL-Bl1Pl'.ORT-ANILJ:.OS'Z'Sl The part ies hereto agree and do hereby waive any right and/or claim they may have, both now and in the future, against the other for alimony, alimony pendente lite, spousal support, maintenance, counsel fees and costs, 26 . l'ERSONAL__RI.ClliTS.l HUSBAND and WIFe; lTIay and shall, at all times hereafter, li ve separate and apart, They shall be free from any control, restraint, interference or authori ty, di rect 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 select. Each may, for his or her separate use or benefit, conduct, carryon 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 means or in any manner whatsoever with him or her, 27 . MUTUAL....RELEASESl 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 ccme, and for all pur/?()see whatsoever, of any trom any and all rights, title and interests, or claims in or against the property (includi.ng income and gain from property hereafter accruing) of the other DIANE G, RADCLIFF 3448 TRINDI.E ROAD CAMP HII.I., PA 17011 {7171737.0100 Page 15 of 23 DIANE Q, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 17011 {7171737,0100 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 have against such other, the estate of such other or any part thereof, whether arising out of any former acts, contracts, engagements or liabilities of such other or by way of dower or curtsey, or claims in the nature of dower or curtsey 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 1 s willi or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse to part icipate in a deceased spouse's estate, whether arising under the laws of (a) the Commonweal th of Pennsylvania, (b) Sta.te, 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, any 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 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 Page 16 of 23 DIANE G, RADCLIFF 3448 TRINDlE ROAD CAMP Hill, PA 17011 (7171737.0100 which may arise under this Agreement or for the breach of any provisions thereof. 28 . WAIYER_QR,MODIFICAT:lON_TO-BIiLIN_WRITINGJ, No modi fication 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. 2 9 . MtI'r..t.lAL.-..CQQp.ERA'I'lON~ 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 instruments and/or document that the other party may reasonably require for the purpose of giving full force and effect to the provisions of this Agreement. 30 . AGREEMEll'LJ3.ImuN~Q}LHEI.Rat 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-t This Agreement constitutes the entire understanding of the parties and supersedes any i'llld all prior agreements and negotiations between them. There are no representatione or warranties other than those expressly set forth herein. 32 . QTHElLOOCllMEN'rATIQN t 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, Page 17 or 23 DIANE G, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 17011 (7171737,0100 assignments, releases, satisfactions, deeds, notes, stock certificates, or such other writings as may be necessary or desirable for the proper effectuatIon of this l\greement, and as their respective counsel shall mutually agree should be 80 executed in order to carry out fully and effectively the terms of this Agreement. 33 . NO_WAIVER_~_DEFAULT-,- This Agreement shall remain in full force and effect unless and until terminated under and puruuant 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 of such party hereafter to enforce the same, nor shall the waiver of any 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. BREACIit If for any reason eIther HUSBAND or WIFE fai1!1 to perform his or her obligations 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 J:emedies, 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 of 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 I s fees and Page 18 of 23 costs Incurred as the refJul t of said breach and in bringing the actIon for fJpecific performance. b. the right to damages arising out of breach of the tenns of thif! 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 actirJIl . c. the right to all remedies set forth in Section 35021e) of the Pennsylvania Divorce Code, 23 Pa. C.S,A. 3502 Ie), an any additional rightA 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 limited to: 1. the entry of judgment; ?. the aut:horization of the taking and seizure of goods and chat tels and collect ion of rents and profits of real and personal and tangible and intangible property; 3. the award of interest on any unpaid installment; 4. the transfer and sale of any property required to obtain compliance with the obligations undertaken by this Agreement; 5. the posting of securi ty to insure future payments t.o af!sure complianoe with the obligations undertaken by this Agreement; 6. t.he issuance of attachment proceedings and the hOlding of the breaChing party to be in contempt and the making of approprIate order therefor DIANE G. RADCLIFF 3448 TRINDlE ROAD CAMP HilL. PA 17011 17171137.0100 I'ugc 19 of 23 DIANE 0, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 17011 (7171737-0100 including, but not limited to, commitment of the breaching party to county jail for a period not to exceed six (6) months, 7. the award of counsel fees and costs, 8. the attachment of the breaching party's wages. d. Any other remedies provided tor in law or in equity, 35. LAi'LDF..,P.ENNS.YItllANIAA1>l'LICABLEL Thi13 Agreement shall be construed in accordance wi th the laws of the Commonwealth of Pennsylvania, 36 . BEYERABllI'U : If any term, condition, 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 Agx'eement and in all other respects this Agreement shall remain valid and continue in full force, effect and operation. Likewise, the failure of either party to meet his or her obligations under this Agreement under any one or more of the paragraphs hereunder, with the exception of the satisfaction of a condition precedent, shall in no way avoid or al tel' the remaining obligations of the parties. 37. HEADINGS toroT._.1'AR~GREEMEH'r.1. Any headings preceding the text of the several paragraphs and subparagraphs hereof, are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. Page 20 of 23 EXHIBIT "A" PERSONALTY DISTRIBUTION LIST 1{1 l ., , , 1, \~"J I ) \1 DIANE 0, RADCLIFF 3448 TRINDLE ROAD CAMP HILL, PA 17011 (717)737.0100 PAge 22 of 23 IN THE COURT 011 COMMON P[,EAS 0[1 CUMBERLAND COUNTY, PU:NNSYL,vANIA JOANNfi: 1" MCCARTHY, Pla~l1tJ.ff v, NO, 98-1691 CIVIl, ACTION - LAW DIVORCE: JAMES P. MCCARTHY, Defendan t PRAECI PE OF 7'RANSMIT 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 a. b. and manner of service of the complaint: Date: March 31, 1998 Manner: Certified mail, restricted delivery. 3, Date of execution of the affidavit of consent required by Section 3301 (c) of the Divorce Code: a. Plaintiff: December 9, 1998 b. Defendant: December 9, 1998 OR Date of execution of the Plaintiff's affidavit required by Section 3301(d) of the Divorce Code and date of service of the Plaintiff's 3301 (ell affidavit upon the Defendant: a. Date of execution: n/a b, Date of filing: n/a c. Date of service: n/ a 4, Related claims pending: No issues are pending, All issues have been resolved pursuant to the Marriage Settlement Agreement between the 1?arties dated December 9, 1998 which Agreement is to be incorporated lnto but not merged with the Divorce Decree. 5. 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) (I) (i) of the Divorce Code: a. Date of Service: n/a b. Manner of Service: n/a. OR Date Waiver of Notice in Section Prothonotary: a. Plaintiff's Waiver: 12/16/98 b. Defendant's Waiver: 12/16/98 3301(c) Divorce was filed with the r:-.. ( l-0t. "'\: l ~ -,.,~ c~ ESQUIRE L DI!iliEG, RADCLIFF, ,31[48 Tr' dl e Road cc.amp.- 1, PAl? 0 11 Supreme Court ID # 32112 Phone: (717) 737-0100 Fax: (717) 975..0697 Attorney for Plaintiff Q \':',,:\ (, .c, tJ:) rr ..,. G:') ,~ "-1 "tii-/l rq .'{' ~n rn(1i I,'"') '1\'. ;::::,., '<:19 ;~c U),1 Q', 'i;~) ~'~i \~ ; -0 :-1.1 ~r;l c' ...'-h ','e5 .c~ ell 'j', !'\.\ ".tn ~. ~;~ () .. :[..:1 ~:'l :J1 ~lJ -< ,,"-,.J ~, (WIN:' "I1J\DCLlFF ".l'I'\')";' : 'IDi.E nOAD l' ''''Ai' I, PA 17011 (11/)"/'(;100 IN 'l'HE COURT aIr COMMON PLEAS OF' CUMBERI,AND COUNTY, PENNSYLVANIA JOANNE L. MCCAH'rHY, Plaintiff v. NO. Qp-/("'9/ G,-'1' ('-k~nl JAME:S P. MCCARTHY, Defendant CIVIL ACTION - LAW DIVORCE NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claJms set forth in the following pages, you must take prompt action. You are warned that ,if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A jUdgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visi taUon of your children. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the OffJ ce of the Prothonotary at the Cumberland County Courthouse, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, COUNSEL FEES OR EXPENSE:S BEFORE THE FINAL DECREE OF DIVORCE OR ANNULMEm' IS GRANTED, YOU MAY LOSE THE RIGHT '1'0 CLAIM ANY OF THEM. YOU SHOULD TAKE THI S PAPER TO YOUR LAWYER AT ONCE. I F YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 i4 , , '.. 1.II,I'Ni' 'i. fIADCl,IFf :"I~H TfI,NIJU' ROAD eM"!' lilli, PA 17011 (11 'i) '(~; /Oi 00 IN THE COURT OF COMMON PI,EAS OF' CUMBERI,Jl.ND COUNTY, PENNSYINII.NIA JOANNE L. MCCAR'I'HY, PlaIntiff r2'uI'{ '-~~~ v. NO. qf- /(, 9/ JAMES P. MCCAR'rHY, CIVIL ACT ION - LAW Defendant DIVORCE COMP1J\INT AND NOW, this Qllt- day of :d'~)aA.~,l.-, 1998, comes the PlaIntiff, JOANNE L. MCCARTHY, by her attorney, DIANE G. RADCLIFF, ESQUIRE, and fIles this ComplaInt In Divorce of which the following is a stiitement: COUNT I: DIVORCE 1. The PlaIntiff is JOANNE L. MCCARTHY, an adult indIvidual residing at 5335 Carol Street, New Cumberland, Pennsylvania 17070. 2. The Defendant is JAMES P. MCCARTHY, an adult individual residing at 226 Walnut street, Lemoyne, Pennsylvania 17043. 3. Plaintiff and/or Defendant have been bona fide residents of the Commonwealth for at least six (6) months previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on May 19, 1990 at New Cumberland, Pennsylvania. 5. There have been no prIor actions of divorce or annulment between the parties. 6. Plaintiff has been advised of the availability of counseling and the right to request that the Court require the parties to .2. participate in counseling. 7. The Defendant is not a member of the Armed Services of the United States or any of its Allies. 8. The Plaintiff avers that the grounds on which the action is based are: a. That the marriage is irretrievably broken; Or in the alternative, b. That the parties are now living separate and apart, and at the appropriate time, Plaintiff will submit an Affidavit alleging that the parties have lived separate and apart for at least two (2) years and that the marriage is irretrievably broken. WHEREFORE, Plaintiff requests this Honorable Court to enter a decree in divorce, divorcing the Plaintiff and Defendant. COUNT II: EQUITABLE DISTRIBUTION 9. Paragraphs 1 through 8 are incorporated by reference hereto as fully as though the same were set forth at length. 10. Plaintiff and Defendant have acquired property and debts, both real and personal, dUring their marriage from May 19, 1990 until August 15, 1997, the date of separation, all of which is "marital property" or "marital debts". fIJ/l_Nf (i, W\DCLlFF j'j(IB "f) :ir JUtE FlOAD (MAl' "'Ll, PA 17011 l/l /) }:1"1{)'ifJO ll. Plaintiff and/or Defendant have acquired, prior to the marriage or subsequent thereto, "non-marital property" which has increased .in value since the date of marriage and/or subsequent to its acquisi tion during the marriage, whic4, increase in value is "marital property". - 3 - VERIFICATION JOANNE L. MCCAR1'HY verifies that the statements made in this Complaint are true and correct. LJOANNE L. MCCARTHY understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. \./(J CL~''-(Z t?: (l (!t'-~~ J~NE L. M ARTHY - 1lI.' NI \;, fll\DCLIFF :','1<18 TF:lrmu, ROAD CNvi!' lillI., PA 17011 (71/1 11/(1100 .. 5.. IJIANf! 0, RADCLIFF 3448 nUND!.!: ROAD CAMJ> 11I1.I.. J>A 17011 (717)7)7-0100 , , IN THE COUR1' 017 COMMON Pl,EAS OF CUMBBRl,AND COUNTY, PENNSYl,vANIA JOANNB 1,. MCCARTHY, Plaintiff v. NO. 98-1691 CIVIL ACTION - LAW DIVORCE JAMES p, MCCARTHY, Defendant AJi'FlllAYlLQ1;:'CflliS.El'/T I. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on 3/27/98, 2, The marriage of PlaintifT and Defendant is irretrievubly broken and ninety (90) days have clapscd from the datc of filing and service ofthc Complaint. 3, I conscnt to the entry of a final Decrec in Divorce atler servicc of notice of intention to request cntry of the decrce. I verify that the statements made in this Aftidavil arc true and corrcct. I understand that falsc statements hercin are madc subject to the pcnalties of 18 Pa. C,S. Section 4904 rclating to unsworn falsitication to authoritics. Dated: /01-'-"" ~ .~ ~, r'tt(!~ J L CCARI'HY -f , , p ..~ '1')1':' tt111 ~;.:t;, 4>i::t Ct),! ' (:]t- :i~f(__:~ .... -.' Y1L/ ::..; '"<; In co f',':) tq (-) () 'f1 '.I ,'I::!] rJ};"; ur::1 :)(1.) '-::/.~D '; (') (")'n-, ~t~1 ,-0 "'"(~ - Ch ~i,: .../" Ii':' U., .J........ , ,. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOANNE L, MCCARTHY, plaintiff r I" '1 r/ tt v. NO. 98-1691 CIVIL ACTION - LAW DIVORCE JAMES P. MCCARTHY, Defendant WAlY.ER-OElIDT1CE OF INI.IiliIJ.illilO~8~~ JEST IiliIRY-.OEA nIVORCf, DECREE 11 ' SECTIOID3Jl1(c) OF TI-IEM'ORCE CODE 1, I consent to the cntry of a final decrce in divorce without notice. 2, I understand that I may lose rights concerning alimony, division of property, lawyer's fees 01' expenses if! do not claim them before a divorce is granted, 3, I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary, I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to thc penalties of 18 Pa,C.S, Section 4904 relating to unsworn falsification to authorities, Dated: J~-q-9r Jifft~CfR'l:;C~ DIANE 0, RAllCl.Il'1' 344R TRINllLli ROAD CAMP 1111.1., PA 17011 (717)131,0100 . . , . j , , I \D (') I,X~ "'1 I :1t ,'I ~, ;,~ wi':; 'I ~.'(J , I q :'r-I .....J tl:J , () , "'I , " " 1:'3 c:) ,'-.,) rn .. "I ',','1 tr"' 'r.,. ~,tj ..,' (;:l ".