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HomeMy WebLinkAbout98-03387 "'-! "1' I ~! -..t' ~l ~I ~l ~I I ~11 ~ 1 \ sl I i --4 ' - ~ 3 ~ i PROPERTY SETTLEMENT AGREEMENT c-t" " THIS AGREEMENT, made this.L day of "::'b't-(," ",ep(", 1998, by and between ELIZABETH V. SCHWALB, of Meehaniesburg, Cumberland County, Pennsylvania (hereinafter referred to as "WIFE") and RA YMOND J. SCHWALB, of Grantham, Cumberland County, Pennsylvania (hereinafter referrcd to as "HUSBAND"): WITNESSETH: WHEREAS, the parties were married on April 25, 1992, in Montgomery County, Maryland, and; WHEREAS, diverse, unhappy di ffcrenees, disputes and difficulties have arisen between the parties and it is the intention of WIFE and HUSBAND to live separate and apart, and the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation by specification: thc settling of all matters between them relating to the ownership and equitable distribution of real and personal property; settling of all matters between them relating to the past, present and future support, alimony and/or maintenance of WIFE by HUSBAND or of HUSBAND by WIFE; and in general, the settling of any and all claims and possible claims by one against the other or against their respecti vc estates. NOW, THEREFORE, in consideration of the premises and of the mutual promiscs, covenants and undertakings hereinafter set forth and for other good and valuable considcration, receipt or which is hcrcby acknowledged by each of the parties hereto, HUSBAND and WIFE, each intending to be legally bound hercby covenant and agree as follows: 1. SEPARATION: HUSBAND and WIFE shall at all times hereafter have the right to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit, free from any control, restraint or interference whatsoever by the other. The foregoing provisions shall not be taken to be an admission on the part of either HUSBAND or WIFE of the lawfulness or unlawfulness of the causes leading to their living apart. Neither party shall molest the other or attempt to endeavor to molest the other, nor compel the other to cohabitate with the other, or in any way harass or malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other. 2. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS: This Agreement shall not be considered to affect or bar the right of HUSBAND or WIFE to a divorce on lawful grounds as sueh 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 a condonation on the part of either party hereto of any act or aets on the part of the other party which have occasioned the disputes or unhappy differences which have occurred prior to or which may occur subsequent to the date hereof. 2 3. SUBSEOUENT DIVORCE: The parties hereby acknowledge that HUSBAND has filed a Complaint in Divorce in Cumberland County to Docket No, 98-3387, claiming that the marriage is irretrievably broken under Section 330 I (c) ofthe Pennsylvania Divorce Code. WIFE hereby expresses her agreement that the marriage is irretrievably broken and expresses her intent to execute any and all Affidavits or other documents necessary for the parties to obtain an absolute divorce pursuant to Section 3301 (c) of the Divorce Code at the same time as she executes this Agreement. The parties hereby waive all rights to request court ordered counseling under the Divorce Code, It is further specifically understood and agreed by the parties that the provisions of this Agreement as to equitable distribution of property of the parties are accepted by each party as a final settlement for all purposes whatsoever, as contemplated by the Pennsylvania Divorce Code. Should a decree, judgment or order of divorce be obtained by either of the parties in this or any other state, country or jurisdiction, each of the parties hereby consents and agrees that this Agreement and all of its covenants shall not be affected in any way by such separation or divorce; and that nothing in any such decree, judgment, order or further modification or revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both of the parties shall remarry. It is the specific intent of the parties to permit this Agreement to survive any judgment and to be forever binding and conclusive upon the parties. 4. INCORPORATION IN DIVORCE DECREE: It is further agreed, covenanted and stipulated that this Agreement, or the essential parts hereof, shall be 3 incorporated in any dccree hereinafter entercd by any court of competent jurisdiction in any divorce proceedings that have been or may be instituted by the parties for the purpose of enforcing the contractual obligations of the parties, This Agreement shall not be merged in any such decree but shall in all respects survive the same and be forever binding and conclusive upon the parties. 5. EFFECTIVE DATE: The effective date of this Agreement shall be the "date of execution" or "execution date," defined as the date upon which it is executed by the parties if they have each executed this Agreement on the same date, Otherwise, 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. 6. DISTRIBUTION DATE: 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, However, the support and/or alimony payments, if any, provided for in this Agreement shall take effect as set forth in this Agreement. 7. MUTUAL RELEASE: HUSBAND and WIFE each do hereby mutually remise, release, quit-claim and forever discharge the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, title and interest, or claims in or against the property (including income and gain from property hereafter 4 accming) of the othcr or againslthe cstalc of such olher, of whatever nature unu wheresoever situuted, which he or she now Ims or at any time hereafter may huve aguinst the olher, thc estute of such other or any parlthercof, whelher arising oul of any former acts, eontracls, engagements or liabilities of sueh other or by way of dower or curtesy, or claims in the nature of dower or curtesy 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 a testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of (a) Pennsylvania, (b) any State, Commonwealth or terrilory of the United States, or (c) any country or any rights which either party may have or at any time hereafter shall have for past, present or future support or maintenance, alimony, alimony pendente lite, counsel fees, division of property, costs or expenses, whether arising as a result of the marital relations or otherwise, 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. It is the intention of HUSBAND and WIFE to give 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 provision '(hereof. It is further agreed that this Agreement shall be and constitute a full and final resolution of any and all claims which each of the parties may have against the other for equitable division of property, alimony, counsel fees and expenses, alimony pendente lile or any other claims pursuant to the Pennsylvania Divorce Code 5 ,. ,> . ~- .:-.. or the divorce laws of any other jurisdiction, 8, AOVICF. OF COUNSF.L: The provisions of this Agreement and its legal effect have been fully explained to the parties by EMILY L. HOFFMAN, Esquire, counsel for HUSBAND and ROBERT PETER KLINE, Esquire, counsel for WIFE. HUSBAND and WIFE acknowledge that 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, The parties further acknowledge that they have each made to the other a full accounting of their respective assets, estate, liabilities, and sources of income and that they waive any specific enumeration thereof for the purpose of this Agreement. Each party agrees that he or she shall not at any future time raise as a defense or otherwise the lack of such disclosure in any legal proceeding involving this Agreement. 9. WARRANTY AS TO EXISTING OBLIGA nONS: Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligation for which the estate of the other party may be responsible or liable except as may be provided for in this Agreement. Each party agrees to indemnify and hold the other party harmless for and against any and all such debts, liabilities or obligations of every kind which may have heretofore been incurred by them, including those for necessities, except for the obligations arising out of this Agreement. 6 10. WARRANTY AS TO FUTURE OBLIGATIONS: HUSBAND and WIFE covenant, warrant, represent and agree that, with the exception of obligations set forth in this Agreement, neither of them shall hereafter incur any liability whatsoever for which the estate of the other may be liable. Each party shall indemnify and hold hal1Tlle5S the other party for and against any and all debts, charges and liabilities incurred by the other after the execution date of this Agreement, except as may be otherwise specifically provided for by the tel1Tls of this Agreement. 11. DEBT OF THE PARTIES: HUSBAND agrees to pay and be solely responsible for the debts owed in his name. HUSBAND agrees to indemnify and hold WIFE hal1Tlless from any and all liability associated with said debt. WIFE agrees to pay and be solely responsible for the debts owed in her name. WIFE agrees to indemnify and hold HUSBAND hal1Tlle5S from any and all liability associated with said debt. 12. PERSONAL PROPERTY: The parties have divided between them, to their mutual satisfaction, the personal effects, household furniture and furnishings, and all other articles of personal property which have heretofore been used by them in common, and neither party will make any claim to any such items which are now in the possession or under the control of the other. Should it become necessary, the parties each agree to sign any titles or documents necessary to give effect to this paragraph upon request. By these presents, each of the parties hereby specifically waives, releases, renounces and 7 forever abandons whatever claims he or she may have with respect to any personal property which is in the possession of the other, and which shall become the sole and separate property of the other from the date of execution hereof. 13. DIVISION OF REAL PROPERTY: WIFE agrees to transfer all her right, title and interest in and to the real estate situated in Grantham, Cumberland County, Pennsylvania, now titled in the name of HUSBAND and WIFE as tenants by the entireties, to HUSBAND and agrees to immediately execute now and in the future any and all decds, documents or papers necessary to effect such transfer of title upon request. In the event HUSBAND sells the aforementioned property within five (5) years of the execution date of this Agreement, HUSBAND shall pay to WIFE a sum equal to one-third (1/3) of the proceeds of the sale of the property (the amount remaining after mortgage payoff to EMC Mortgage Corporation, all taxes, realtor fees and costs and expenses related to the sale of the home arc paid), In the event HUSBAND does not sell the aforementioned property within five (5) years, HUSBAND shall pay to WIFE, five (5) years from the execution date of this Agreement, the sum of EIGHTEEN THOUSAND and 00/100 ($18,000) DOLLARS. HUSBAND shall execute and deliver to WIFE a mortgage to be recorded with the Recorder of Deeds in and for Cumberland County, evidencing WIFE's interest in said property pursuant to this paragraph. HUSBAND hereby covenants and agrees to assume and pay in full the remaining balance of the mortgage now existing and presently constituting a lien upon and encumbering the same premises, such mortgage being owed and payable to EMC Mortgage Corporation, its 8 " successors amVor assigns, and further covenants and agrces that hc will indcmnify and save WIFE harmless from any and all liability, expense, cost, or loss whatsocver as a result of his non-payment of or non-performance of said mortgage and said mortgage conditions, In the event that HUSBAND shall default upon said mortgage, WIFE may, at her sole option, exercise the right to assume obligation for the then due outstanding balance on said mortgage and, should WIFE exercise such an option, HUSBAND shall execute a deed in favor of WIFE transferring all his right, title and interest in said property and will, at such time, further agree never to assert any claim to said property in the future except as otherwise provided herein. Upon HUSBAND's execution of the deed, WIFE will execute and deliver to HUSBAND a mortgage to be recorded with the Recorder of Deeds in and for Cumberland County in the amount of EIGHTEEN THOUSAND and DOlI 00 (SI8,000) DOLLARS in HUSBAND's favor which will be satisfied when WIFE sells the property and is contingent upon WIFE receiving net proceeds at settlement of at least $56,OCa for the property. ]4. BANK ACCOUNTS: HUSBAND and WIFE acknowledge that they each possess certain bank accounts and the like in their respective names, They hereby agree that each shall become sole owner of their respective accounts and they each hereby waive any interest in, or claim to, any funds held by the other in such accounts. ]5. SECURITIES and MUTUAL FUNDS: WIFE agrees that any and all securities and mutual funds owned by HUSBAND shall remain the sole and exclusive property of HUSBAND. These include but arc not limited to the Waterhouse Securities account, the 9 , .J ii' " :) I ,. , , I: Janus 20 Fund, the Janus Overseas Fund, the Janus Money Market Fund, and shares of Boston Edison stock. WIFE agrees that she has no further claim or interest in HUSBAND's securities :'j and mutual funds and that she will not assert any such claim in the future. HUSBAND agrees I', that any and all securities and mutual funds owned by WIFE shall remain the sole and exclusive property of WIFE. These include but are not limited to the Janus Fund, the Janus Worldwide Fund, the Janus Growth and Income Fund and the Kemper Dreman High Return Fund. HUSBAND agrees that he has no further claim or interest in WIFE's securities and mutual funds and that he will not assert any such claim in the future. 16. DISTRIBUTION OF INDIVIDUAL RETIREMENT ACCOUNTS: HUSBAND hereby acknowledges and agrees that WIFE shall retain, as her separate property, free and clear from any claim, right, title or interest on the part ofthe HUSBAND her Individual Retirement Accounts which include but arc not limited to the Kemper Dreman High Return Fund and the 20'h Century Ultra account. HUSBAND hereby acknowledges that he has no further claim, right, title or interest whatsoever in the Individual Retirement Account of WIFE, and further agree never to assert any claim to the asset in the future. WIFE hereby acknowledges and agrees that HUSBAND shall retain, as his separate property, free and clear from any claim, right, title or interest on the part of the WIFE his Individual Retirement Accounts which include but are not limited to the Janus Fund, Janus Worldwide Fund and the Charles Schwab account. WIFE hereby acknowledges that she has no r I. further claim, right, title or interest whatsoever in the Individual Retirement Accounts of 10 HUSBAND, and further ngree never to assert any claim to the asset in the future, 17, PENSIONS. ANNUITIES AND/OR RETIREMENT BENEFITS: WIFE agrees that any monies which HUSBAND has acquired through his interests in either pensions, profit sharing, savings and thrift plans, annuities and/or retirement benefits through his present or past employers shall remain his sole and exclusive property. WIFE agrees to waive any interests she may have in such property and further agrees that she will not assert any such claim in the future. HUSBAND agrees that any monies which WIFE has acquired through her interests in either pensions, profit sharing, savings and thrift plans, annuities and/or retirement benefits through her present or past employer, including but not limited to her Fry Communications 401k, shall remain her sole and exclusive property, HUSBAND agrees to waive any interests he may have in such property and further agrees that he will not assert any such claim in the future, IS, MOTOR VEHICLES: With respect to the motor vehicles owned by one or both of the parties, the parties agree that the vehicle titled in WIFE's name shall be and remain the sole and exclusive property of WIFE and that the vehicle titled in HUSBAND's name shall be and remain the sole and exclusive property of HUSBAND. Each party agrees to be solely responsible for the amounts presently due and owing against his or her respective automobile. II 19, AFTER-ACQUIRED PROPERTY: Each of the parties shall hereafter own and enjoy, independently of any claim or right of the other, all items of property, be they real, personal or mixed, tangible or intangible, which arc hereafter acquired by him or her, 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 unmanied. 20. INCOME TAX PRIOR RETURNS: The parties have heretofore filed joint Federal and state tax returns. Both parties agree that in the event any deficiency in Federal, state or local income tax is proposed, or any assessment of any such tax is made against either of them, each will indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment and any interest, penalty and expense incurred in connection therewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally determined to be the cause of the misrepresentations or failures to disclose the nature and extent of his or her separate income on the aforesaid joint returns. 21. APPLICABILITY OF TAX LAW TO PROPERTY TRANSFERS: The parties hereby agree and express their intent that any transfer of property pursuant to this Agreement shall be within the scope and applicability of the Deficit Reduction Act of 1984 (hereinafter the "Act"), specifically, the provisions of said Act pertaining to the transfers of property between spouses and fonner spouses. The parties agree to sign and cause to be filed any elections or other documents required by the Internal Revenue Service to render the Act 12 applicable to the transfers set forth in this Agrccmcnt without recognition of gain on such transfer and subject to the carry-over basis provisions of the said Act. 22, W AIVER OF ALIMONY: HUSBAND and WIFE recognize and acknowledge that the foregoing provisions for their individual benefit arc satisfactory with regard to support and maintenance, past, present and future. The parties release and discharge the other absolutely and forever for the rest of their lives from all claims and demands, past, present or future, for alimony, alimony pendente lite or for any provision for support or maintenance, except as specifically provided for herein, The parties further acknowledge that in consideration of the transfers made herein each completely waives and relinquishes any and all claims and/or demands they may now have or hereafter have against the other for alimony, alimony pendente lite, spousal support, counsel fees and court costs except as specifically provided for herein. 23, EFFECT OF DIVORCE DECREE: The parties agree that, except as 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. 24. BREACH: If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election to sue for damages for such breach or seek such other remedies or relief as may be available to him or her, and the party breaching this contract shall be responsible for payment of reasonable legal fees and costs incurred by the 13 28. AIl.DITlONAL INSTRUMENTS: Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. 15 r,i.....,.,1 . ;::'; II" I! . Ii " _J:' rI I. ir:~ I.,: II''''' ,\\ .~:; 29, VOID CLAUSES: If any t';rm, condition, clause or provision of this Agreement shall be detemlined 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. 30. INDEPENDENT SEPARATE COVENANTS: It is specifically understood and agreed by and between the parties hereto that each paragraph hereof shall be deemed to be a separate and independent Agreement. 31. MOD/FICA TlON AND WAIVER: A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent defaults of the same or similar nature. 32. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for convenience only. They shall have no affect whatsoever in determining the rights or obligations of the parties. 33, APPLICABLE LAW: This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania and more specifically under the Divorce Code of 1980 and any amendments thereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the date and year first above wrillen. c )~?~Q WITNESS , (SEAL) ~L1 rL., 4,'1,,1, WITNESS \ , ELIZ ETH V, SCHWALB re:: " ),- / A::"'~ ,. c))'-~>~t.'':(SEAL) RA VM6ND J. SCHWALB i I I \ \ I I , I i I i ., ..- -' /- cr; l. i::~ lI.l~'; (.'; . ~);- , to, ,. 0 0, " c.. c; Cl~- (....1 ; ., UI:,' '" G'~t,. C ; ! [.'. L. : '-" \.;. Ci 1 . .- 0 G', 0 , I r. '.", ~l I (,; !.::.: , , (~'; '. (~.', ::~J I [::: - [ , -' I~- (r:; C) c- '. '..) ~ I I I ~- rr:. - ~ ~j:j l.c. .' 1..1.1 C'"; (:.~: (-.i I ,- , " ',) . , - .' C.) 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