HomeMy WebLinkAbout99-00787
1. Separation. The parties shall hereinafter live separate and apart. Each shall be free from
interference, authority, and control, direct and indirect, by the other as if he or she were single and
unmarried.
2. Control of Agreement. The provisions of this Property Settlement Agreement shall govern
all past, present and/or future claims for alimony, spousal support, counsel fees and costs, alimony
pendente lite, equitable distribution, or other property rights, and all other claims which the WIFE or
HUSBAND has or might have against the other, except as set forth hereinafter.
3. Divorce. A Complaint in Divorce was filed by WIFE on February 10, 1999, which Complaint
is docketed to No. 99-787 Civil Term. Simultaneously with the execution of this Property Settlement
Agreement, the parties agree to sign any and all documents necessary to obtain a Divorce Decree under
Section 3301(c) of the Divorce Code, including but not limited to, Affidavits of Consent, Affidavits Waiving
Marriage Counseling, and Waivers of Notice of Intent to Seek Divorce under Section 3301(c) of the Divorce
Code. In the event that either party refuses to sign the above documents, that party shall have breached
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this Agreement and the non-breaching party shall be entitled to collect any and all attorneys fees and costs
resulting directly from that breach. In that event, all other paragraphs of this Agreement shall remain in full
force and effect, and shall not be affected by such breach. The parties intend that this Agreement shall be
incorporated into any forthcoming Decree in Divorce.
4. Real Property. The parties hereby incorporate the Supplemental Agreement attached hereto
and marked as Exhibit "A" into this Property Settlement Agreement.
5. Personal Property. The parties have acquired certain personal property during the course of
their marriage and hereby acknowledge and represent that such personal property, including household
furniShings and other similar property, has been divided to their mutual satisfaction. It is agreed that each
party shall retain all items of tangible personal property currently in their possession as if it were their sole
and separate property, except as inconsistent with this paragraph. 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 or under the control, of the other, except as inconsistent with this paragraph. Furthermore, each
party agrees to waive any right, title, and/or interest they may have to the property in the possession of the
other. Should it become necessary, the parties each agree to sign upon request, any titles or documents
, necessary to give effect to this paragraph.
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There are numerous personal items that the parties agree belong to HUSBAND remaining at the
marital home. HUSBAND shall have thirty (30) days from the date of this Agreement within which to
retrieve those items. Any items remaining in the marital home after the thirty (30) day period shall become
the sole and separate property of WIFE, and she shall be entitled to dispose of them in any way she sees fit.
6. Automobiles. There Is a 1992 Chevy Cavalier which is titled in HUSBAND'S name, and
which shall become the sole and separate property of WIFE. HUSBAND represents this automobile is free
and clear of any liens and encumbrances, and waives any interest, claim, right or title he may have in the
above automobile.
There are several automobiles owned by HUSBAND including a 1989 RV, a 1988 Chevy Sprint, a
1987 Jeep, and a 1972 Motor Home, Those shall remain the sole and separate property of HUSBAND
subject to any liens and encumbrances, and WIFE hereby waives any interest, claim, right or title to the
above automobiles. HUSBAND hereby agrees to indemnify WIFE and hold her harmless with respect to any
outstanding obligation on the above automobiles.
The titles to the above motor vehicles shall be executed by the parlies,if appropriate, for effecting the
transfer as herein provided, on the date of execution of this Agreement if the title is in possession of one or
the other party. In the event that either or all of the documents of title to the said vehicles shall be in the
hands of a bank or other holder of the lien or encumbrance upon said vehicle, the parties agree to advise
such bank or holder as to the transfer of title set forth herein, and they further agree to execute whatever
' documents may be required to transfer said title. Each party agrees to waive any right, title or interest he or
she may have in the vehicle of the other, and promptly sign any and all documents necessary to effectuate
the above referenced transfer,
7. Custody. The parties ratify in full their Custody Order dated March 20, 1995.
, ,8. Health Insurance. HUSBAND shall continue to provide health and medical insurance for
the parties daughter, IRIS JORDAN, and if he has not done so already, shall immediately provide WIFE with
copies of all relevant insurance information including, but not limited to, plan descriptions, insurance cards
and prescription cards. The parties agree to equally divide all unreimbursed medical and
surgicalldentallorthodontic/optometric/psychological expenses of the child, including co-pays, on a 50 - 50
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basis.
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9. Child S~Dport. The parties acknowledge that there Is no child support order currently In
effect, and that pursuant to Paragraph 4 of this Agreement, HUSBAND is contributing In part to the support
of his minor child, In addition, upon verification of such costs HUSBAND and WIFE agree to contribute
equal amounts for and toward their minor child's expenses including, but not limited to, clothing, extra"
curricular activities, summer and/or sports camps, and education, including post-secondary education, in the
event that the child pursues a college or other post-high school degree (specifically including tuition,
supplies, room and board).
10. Bank Accounts. Any and all bank accounts in the parties' names which existed at
separation have been previously divided to both parties' mutual satisfaction. The parties acknowledge that
they will immediately close any joint accounts and to remove the other party's name from the account so that
there are no joint accounts remaining in existence. Furthermore, each party agrees to waive any right, title
or interest he or she may have in the bank account of the other.
11. Pension and Retirement Benefitfi. Each party shall retain any individual retirement
account, and/or retirement benefit plan (including but not limited to pension or profit sharing plans, deferred
compensation plans, defined benefit plans, 401(k) plans, employee savings and thrift plans, IRA's, or other
similar benefits), whether vested or non-vested. The above shall specifically include a waiver of any spousal
annuity benefits and/or beneficiary designations thereunder. The parties represent that they are aware of
the values in each others retirement accounts and/or specifically waive the right to request any further
documentation thereon. Furthermore, each party shall be and remain the sole owner of any other asset in
his or her control not specifically covered by' other ProviSions of this Agreement. Should it become
necessary, each party agrees to sign any other title or documents necessary to give effect to this section
upon request of the other party.
12. Alimonv. Soousal Support. Alimony Pendente Lite. Counsel Fees. Costs and
EJ(pense$.. Each party specifically waives any past, present, and/or future claims against the other party for,
alimony, spousal support, APL, counsel fees, and costs and expenses.
13. Credit Card Debt. The parties acknowledge and represent that there are no jOint credit
cards nor is there any jOint credit card debt in existence.
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14. MIscellaneous Debt. Any debt not specifically listed in this Agreement and/or incurred after
the date of separation (December 29, 1994) shall be the sole and separate responsibility of the party who
Incurred It.
15, Agreement Executed Voluntarifv and Clearly Understood. Each party to this Agreement
acknowledges and declares that he or she respectively:
A. If fully and completely informed as to the facts relating to the subject matter of this
Agreement, and as to the rights and liabilities of both parties;
B. Enters into this Agreement voluntarily, free from fraud, undue influence, coercion or
duress of any kind;
C. Has given careful and mature thought to the making of this Agreement;
D., Has carefully read each provision of this Agreement;
E. Acknowledges that there has been a full and fair financial disclosure by both parties,
and fully and completely understands each provision of this Agreement.
16. Release ,of All Claims. Each party releases the other from all claims, liabilities, debts,
obligations, actions and causes of action of every kind that have been or will be incurred. Moreover, neither
party is relieved or discharged from any obligation under this Agreement or any instrument or document
executed pursuant to this Agreement.
17. Holding Other Party Free and Harmless. HUSBAND hereby warrants to WIFE that he has, '
not incurred and he hereby agrees that he will not hereafter incur any liability or obligation on which she is or
'may be liable. If any claim or action is brought attempting to hold WIFE liable, for any such liability or
obligation, HUSBAND shall, at his sole expense, defend WIFE against any such claim or action whether or
not founded, and he shall hold her free and harmless therefrom. WIFE hereby warrants to HUSBAND that
she has not incurred and she hereby agrees that she will not hereafter incur any liability or obligation on
which he is or may be liable. If any claim or action is brought attempting to hold HUSBAND liable for any
such liability or obligation, WIFE shall, at her sole expense, defend HUSBAND against any such claim or
action whether or not founded, and she shall hold him free and harmless therefrom.
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18. Additional Instruments. The parties shall, on demand, execute and deliver to the other, any
document, and do or cause to be done, any other act or thing that may be necessary or desirable to
effectuate the provisions and purposes of this Agreement. If either party fails, on demand, to comply with
this provision, that party shall pay to the other, all attorney's fees, costs and other expenses reasonably
incurred as a result of such failure.
19. EMlI Disclosure. The respective parties do hereby warrant, represent, and declare, and do
acknowledge and agree that each is and has been fully and completely informed of, and is familiar with and
cognizant of the wealth, income, real and/or personal property, whether jointly or individually titled, estate
and assets of the other, and that each has made a full and complete disclosure to the other of his and her
entire assets and liabilities, and any further enumeration or statement thereof in this Agreement is hereby
specifically waived. The parties do not wish to make or append hereto any further enumeration or
statement. Each of the parties hereto further covenants and agrees for himself or herself that his or her
heirs, personal representatives and assigns, that he or she will never at any time hereafter sue the other or
his or her heirs, personal representatives or assigns, in any action or contention, direct or indirect, that there
was any absence or iack of full and proper disclosure. Further, both parties waive their right to have the
inventory or financial disclosure statement of the other attached hereto.
20. Representation of the Parties. WIFE is represented by Johnson, Duffie, Stewart &
Weidner, in connection with the negotiation and preparation of this Agreement. HUSBAND is represented
by Marlin R. McCaleb, Esq. in connection with the negotiation and preparation of this Agreement. Each
party has carefully read this Agreement and is completely aware not only of its contents but also of its legal
effect.. WIFE acknowledges that her attorneys have advised her she may be entitled to a pro~
distribution in excess of the terms of this Agreement. however WIFE specifically and intentionally
disregarded the advice of counsel and considers this Agreement in the circumstances to be fair and
equitable, Each party acknowledges and accepts that this Agreement, in the circumstances, is fair and
equitable, and that it is being entered into freely and voluntarily, and that the execution of this Agreement is
not th~ result of any duress or undue influence, and that it is not the result of any improper or illegal
Agreement and/or Agreements.
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25, Modification. This Agreement shall not be subject to modification except as in accordance
with Pennsylvania law and with a writing between both parties evidencing their intent to modify the
Agreement.
26. 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 not be construed as a waiver of any
subsequent default of the same or similar nature.
27. Attornevs Fees and Expense~. Each party shall be responsible for their own attorneys fees
and expenses.
28. Mutual Cooperation. Each of the parties shall, on demand, execute and deliver to the other,
any deeds, bills of sale, quit claims, assignments, consents, tax returns, and other documents and do or
cause to be done any other acts or things as may be necessary or desirable to effectuate the provisions and
purposes of this Agreement. If either party fails on demand to comply with this provision, that party shall pay
to the other all attorney's fees, costs and other expenses reasonably incurred as a result of such failure.
29. BankrlqJtcy. Each of the parties acknowledges and agrees that with respect to the liabilities
each is required to assume and pay under the provisions of this Agreement, each has the ability to fulfill his
or her respective obligations from income or property not reasonably necessary to be expended for such
party's maintenance and support or for the maintenance and support of such party's dependents. Should
either party file a Petition under Title XI of the United States Code, or should a petition be filed against either
involuntarily, each party acknowledges and agrees that the discharge of the debtor party's obligations under
this Agreement will not result in a benefit to the debtor party that outweighs the detrimental consequence to
the non-debtor party or the non-debtor party's child or children.
30. Law of Pennsylvania Applicable. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Pennsylvania.
31. Date of Agreement. The effective date of this Agreement shall be the date,on which the last
, party executes the Agreement if the parties do not execute the Agreement on the same date. Otherwise, the
effective date will be the date that both parties execute the Agreement if they execute on the same date.
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EXHIBIT itA"
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HUSBAND's interest in ~
4. Real ProDerty. The parties acknowledge thaVthe marital home located at214 West Marble
Street, Mechanlcsburg, Cumberland County, Pennsylvania is marital property subject to equitable
distribution. The home is owned by HUSBAND and HUSBAND's brother, Clarence E. Asbury, as joint
tenants with right of survivorship.
A. Possession. The parties (specifically including Clarence E. Asbury) agree that WIFE
shall continue to enjoy exclusive possession of the marital home at least until the parties' minor child
turns eighteen (18) or graduates from high school, whichever occurs later. It is agreed that WIFE
shall exercise exclusive possession of the home, free from any interference whatsoever from'
HUSBAND and/or HUSBAND's brother, Clarence E. Asbury, as long as she is not in default of her
obligations under this Supplemental Agreement.
The parties (specifically including Clarence E. Asbury) agree that at any time while WIFE is
living in the home and is not in default of this Supplemental Agreement, she shall have the option to
purChase the home from HUSBAND and his brother for fair market value. The parties agreeto have
an appraisal done and equally divide the cost in order to determine the fair market value of the home
in the event that the parties cannot agree on a figure. In the event that WIFE purchases the prop~rty,
HUSBAND and HUSBAND's brother agree to execute an Agreement of Sale setting forth the terms
of the sale and upon settlement, payment ofthe purchase price in full, and delivery of the deed,
thereafter to waive any interest, claim, right and/or title to the property and it shall belong solely to
WIFE.
In the event that WIFE voluntarily and permanently vacates the home at any time, WIFE
acknowledges that the home shall become the sole and exclusive property of HUSBAND and his
brother, subject'to any liens and/or encumbrances. In that event, WIFE forfeits possession of the
property and agrees to waive any interest, claim, right and/or title she had or may have in and to the
home.
In the event that HUSBAND defaults in the performance of his obligations under this
Supplemental Agreement, and such default causes WIFE to involuntarily vacate the home prior to
the parties' minor child's eighteenth (18th) birthday or graduation from high school, whichever event
occurs later, HUSBAND shall continue to be responsible to make monthly payments to WIFE in the
amount of the monthly mortgage payment as of the date of this Agreement, until the parties'
youngest child turns eighteen (18) or graduates from high school, whichever happens last.
WIFE agrees to keep and maintain the home in a good state of repair during her period of
exclusive possession.
B. Payment of Bills and Expenses. HUSBAND shall remain solely responsible for
making timely monthly mortgage payments directly to the mortgage company, and HUSBAND and
Clarence E. Asbury shall indemnify WIFE and hold her harmless with respect to any and all liability
as a result of HUSBAND's nonpayment or non-performance of the mortgage obligations. HUSBAND
shall furnish WIFE promptly with any notice of default from the mortgage lender and any other
information WIFE may require regarding the home.
WIFE shall be responsible for all utilities in the home including but not limited to electric, gas,
water, oil, telephone, cable, sewer and trash. WIFE shall also be responsible for general
maintenance of the interior and exterior of the marital home, with the exception of structural repairs,
specifically including roof repairs, which shall be HUSBAND's responsibility.
WIFE shall be responsible for lawn care, snow removal, and other minor aesthetic
enhancements to the interior and exterior of the home. ' WIFE shall be responsible for the
replacement of worn out or defective appliances, carpeting, interior painting, and window treatments.
In the event that WIFE desires to make any major modifications to the home during the period ~f time
in which she enjoys exclusive possession, which major modifications are limited to the addition of an
extra room or rooms to the home, and/or the addition of a swimming pool, WIFE agrees to consult
with HUSBAND and obtain his consent. WIFE shall be responsible for any costs in connection
therewith unless the parties agree otherwise.
HUSBAND shall be responsible for all structural repair, including but not limited to roof repair,
plumbing repair, heating and cooling system repair, electrical wiring repair, exterior painting and
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6.
The marriage is irretrievably broken.
7. The Plaintiff has been advised of the availability of marriage counseling and she may have the
right to request that the Court require the parties to participate in counseling.
WHEREFORE, the Plaintiff respectfully requests that your Honorable Court enter a decree of divorce
under Section 3301 (c) of the Divorce Code.
JOHNSON, DUFFIE, STEWART & WEIDNER
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Johnson, Duffie, Stewart & Weidner
By: Keirsten W. Davidson
LD. No. 78243
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Plaintiff
DONNA M. ASBURY,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-787 CIVIL TERM
CIVIL ACTION - LAW
IN DIVORCE
Plaintiff
v.
CHARLES C. ASBURY,
Defendant
AFFIDA VIT OF CONSENT
1. A Complaint in divorce under Section 3301 (c) of the Divorce Code was filed on February 10,
1999.
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 a final decree in divorce after service of notice of intention to request
entry of the decree.
4. I have been advised of the availability of marriage counseling, understand that the Court
maintains a list of marriage counselors and that I may request the Court require my spouse and I to participate
in counseling and, being so advised, I do not request that the Court require that my spouse and I participate in
counseling prior to the divorce becoming final.
I verify 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
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authorities.
'Date:~
:127558
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Donna M. Asbury, Pia tiff
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