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HomeMy WebLinkAbout03-2865KELLY BARNHART, Plaintiff VS. MICHAEL BARNHART, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA .o. CIVIL ACTION - LAW IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims 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 visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Court House, 1 Court House Square, Carlisle, Pennsylvania, 17013-3387. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF 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 LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 KELLY BARNHART, Plaintiff VS. MICHAEL BARNHART, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA .o. - CIVIL ACTION - LAW IN DIVORCE COMPLAINT UNDER §3301 OF THE DIVORCE CODE 1. Plaintiff is Kelly Barnhart who currently resides at 1374 Indian Peg Road, Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant is Michael Barnhart who currently resides at 1374 Indian Peg Road, Boiling Springs, Cumberland County, Pennsylvania. 3. Plaintiff has been a bona fide resident of the Commonwealth of Pennsylvania for a period of more than six (6) months immediately preceding the filing of this Complaint. 4. The Parties were married on June 24, 2001. 5. Neither Plaintiff nor Defendant is in the military or naval service of the United States or its allies within the provisions of the Soldiers' and Sailors' Civil Relief Act of the Congress of 1940 and its amendments. 6. There has been no prior action for divorce or annulment instituted by either of the parties in this or any other jurisdiction. 7. The Plaintiff has been advised that counseling is available and that Plaintiff may have the right to request that the Court require the parties to participate in counseling. 8. Plaintiff avers that there are no children of the parties under the age of eighteen. COUNT I. REQUEST FOR A NO-FAULT DIVORCE UNDER §3301(c) OF THE DIVORCE CODE 9. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 10. The marriage of the parties is irretrievably broken. 11. After ninety (90) days have elapsed from the date of the filing of this Complaint, Plaintiff intends to file an affidavit consenting to a divorce. Plaintiff believes that Defendant may also file such an affidavit. WHEREFORE, if both parties file affidavits consenting to a divome after ninety (90) days have elapsed from the date of the filing of this Complaint, Plaintiff respectfully requests the Court to enter a Decree of Divome pursuant to Section 3301 (c) of the Divorce Code COUNT II. REQUEST FOR A NO-FAULT DIVORCE UNDER §3301(d) OF THE DIVORCE CODE 12. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 13. The marriage of the parties is irretrievably broken. 14. The parties are 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 years as specified in Section 3301(d) of the Divorce Code. WHEREFORE, Plaintiff respectfully requests the Court to enter a Decree of Divorce pursuant to Section 3301(d) of the Divorce Code. COUNT III. REQUEST FOR EQUITABLE DISTRIBUTION OF MARITAL PROPERTY UNDER §3323, §3501, §3502 and §3503 OF THE DIVORCE CODE 15. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 16. Plaintiff requests the Court to equitably divide, distribute or assign the martial property between the parties without regard to marital misconduct in such proportion as the Court deems just after consideration of all relevant factors. WHEREFORE, Plaintiff respectfully requests the Court to enter an order of equitable distribution of marital property pursuant to Sections 3323, 3501, 3502 and 3503 of the Divorce Code. COUNT IV. REQUEST FOR APPROVAL OF ANY SETTLEMENT AGREEMENT AND iNCORPORATION THEREOF IN DIVORCE DECREE UNDER SECTION 3104 OF THE DIVORCE CODE 17. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 18. The public policy of the Commonwealth of Pennsylvania encourages parties to a marital dispute to negotiate a settlement of their differences. 19. While no settlement has been reached as of the date of the filing of this Complaint, Plaintiff is and has always been willing to negotiate a fair and reasonable settlement of all matters with Defendant. 20. To the extent that a written settlement agreement might be entered into between the parties prior to the time of hearing on this Complaint, Plaintiff desires that such written agreement be approved by the Court and incorporated in any divorce decree which may be entered dissolving the marriage between the parties. WHEREFORE, if a written settlement agreement is reached between the Parties prior to the time of hearing on this Complaint, Plaintiff respectfully requests that, pursuant to Section 3104 of the Divorce code, the Court approve and incorporate such agreement in the final divorce decree. Date: BY: Respectfully submitted: ~ennen~/'~t~ sEt~ eq eU i r e Dillsburg, PA 17019 (717) 432-9666 ID #87445 ATTORNEY FOR PLAINTIFF VERIFICATION I, Kelly Barnhart, hereby swear and affirm that the facts contained in the foregoing Complaint for Divorce are true and correct and are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Date: Kelly//Bar~art / KELLY BARNHART, * Plaintiff * vs. * NO. 03-2865 MICHAEL BARNHART, * CIVIL ACTION - LAW Defendant * IN DIVORCE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AFFIDAVIT OF SERVICE I, Sherie A. Minich, being duly sworn, deposes and says that she is an adult and that she served a Complaint in Divorce on the Defendant, at the Defendant's last known address as follows: 4595 Wayne Road, Chambersburg, PA by certified mail, restricted delivery, return receipt requested on the 1 lth of June, 2003. The Certified Mail Receipt is attached hereto, marked Exhibit "A" and made a part hereof by reference thereto. Date: July 9, 2003 COMMONWEALTH OF PENNSYLVANIA : : SS COUNTY OF YORK :.' By: WILEY, LENOX, COLGAN & MARZZACCO, ~. Sherie A Minich ' / 34M~ On this, the 9th day of July, 2003, before me, a notary public, personally appeared Sherle A. Minich known to me or satisfactorily proven to be the whose name is subscribed to the within Affidavit and acknowledged that she executed the same for the purposes therein contained. WITNESS, my hand and notarial seal the day and year aforesaid. Notarial Seal 8. Dawn Gladfelter, Notap] Publio DIIlaburg Boro. Yo~k County My Commission Expires May 17, 2005 My Commission Expires · Complete items 1, 2, ~ ~. Also complete ' I ite~ 4 if Restricted Delivery is desired. - Print your name and ad~lress on the reverse · Attach this card to the beck of the mailpiece, or on the front if space permits. I~. A 7001 1940 0004 1161 2117 O_ PS Forrn 3811, ~ogu~t 2001 Oo.~lc Return Receipt 3.~e~vice Ty~'ce Type ~.~erfifled Mail I'1 Express Mail EXHIBIT "A" KELLY BARNHART, Plaintiff VS. MICHAEL BARNHART, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2865 Civil Term CIVIL ACTION - LAW IN DIVORCE NOTICE OF ELECTION TO RESUME PRIOR NAME Notice is hereby given that a Complaint in Divorce has been filed in this matter on June 18, 2003 and is pending a Decree in Divorce. Defendant hereby elects to resume her prior name of Kelly Smith, and gives this written notice of her intention in accordance with the provisions of 54 Pa. C.S.§704. Ke~y B,~rnhart . COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF YORK On the i<:~%aY of ~, 200~., before me, a Nota~ Public, personally appeared KELLYBARNHART known to me to be the person whose name is subscribed to the within document and acknowledged that she executed the foregoing for the purpose therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. No~afiat Seal S. D_~_,w? Gl _a~lfetter, N~ Public M _uIl~l~J~g uoro, York C~Jrtty y G~ltltWsion Exp res May 11, Me~, Peflllsylvanla A~soctal~l Ot N~a~S September 20, 2003 MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, made this ..~C~ ~ day of,=~;~._, 2003, by and between, Michael Barnhart, hereinafter referred to as "Husband", and Kelly Smith (formerly Kelly Barnhart), hereinafter referred to as "Wife". WITNESSETH: WHEREAS, Husband and Wife were lawfully married on June 24, 2001, and WHEREAS, certain differences arose between the parties as a result of which they separated on May 1, 2003, and now live separate and apart from one another, and are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation by specification: the settJing of all matters between them relating to the past, present and future support 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 respective estates for equitable distribution of all marital property; and a resolution of all mutual responsibilities and rights growing out of the marriage relationship any provisions of prior agreement between them to the contrary notwithstanding; and WHEREAS, this agreement has been prepared by Jennifer L. Frechette, Esquire, counsel for Wife. At the commencement of and at all stages during the negotiation of this Agreement, Husband has been informed that Jennifer L. Frechette, Esquire has acted solely as counsel for Wife and has not advised nor represented Husband in any manner whatsoever. Husband, at the commencement of and at all stages during the negotiation of this Agreement, has been advised that he could be represented by counsel but at all times has elected not to be so represented. Husband has read this Agreement carefully and thoroughly, fully understanding each of its provisions, and therefore signs it clearly and voluntarily. Wife has been counseled by her attorney, and the parties together have come up with the following agreement. NOW THEREFORE, in consideration of the, above recitals and the following covenants and promises mutually made and mutually to be kept, the parties heretofore, /~ (Initials) ~-~'-"~ (Initials) Draft #1 September 20, 2003 intending to be legally bound and to legally bind their heirs, successors and assigns thereby, covenant, promise and agree as follows: 1. SEPARATION: It shall be lawful for each party at all times hereafter to live separate and apart from the other at such place or places as. he or she may from time to time choose or deem fit. 2. INTERFERENCE: Each party shall be free from interference, authority and contact by the other, as fully as if he or she were single and unmarried, except as may be necessary to carry out the provisions of this Agreement. Neither' party shall harass the other nor endeavor to molest the other, nor compel the other to cohabit with the other nor in any way malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other in all respects as if he or she were single and unmarried. 3. WIFE'S DEBTS: Other than the debts indicated in Paragraph 5 below Wife represents and warrants to Husband that since May 1, 2003, she has not, and in the future, she will not, contract or incur any debt or liability for which Husband or his estate might be responsible and 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. 4. HUSBAND'S DEBTS: Other than the debts indicated in Paragraph 5 below, Husband represents and warrants to Wife that since May 1, 2003, he has not, and in the future he will not, contract Pr incur any debt or liability for which Wife or her estate might be responsible and 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. 5, OUTSTANDING MARITAL DEBTS: Husband and Wife acknowledge and agree that they have no outstanding marital debts and obligations of the Husband and Wife incurred prior to the signing of this agreement, except as follows: ~ (initials) ~-J~ (Initials) 2 Draft #1 September 20, 2003 DESCRIPTION AMOUNT A. Mortgage $121,000 B. Nissan Motor Credit $16,642 PERSON(S) NOW H&W W The parties agree that Wife shall hereafter be responsible for paying debt B above, and that they shall split the mortgage payments (debt A) which are due prior to the sale of the marital residence, with Wife paying 36% and Husband paying 64% of the monthly payments. Each party agrees to pay the outstanding joint debts as allocated and further agrees to indemnify and save harmless the other from any liability for such debts or obligations. In the event that either party contracted or incurred any debts, other than those specifically identified herein since May 1, 2003, the party who incurred the debt shall be responsible for its payment regardless of the name in which the account may have been charged and agrees to indemnify and hold harmless the other for any liability for such debts. 6. MUTUAL RELEASE: Except as provided in this Agreement, each party waives his or her right to alimony and any further distribution of property because both agree that this Agreement provides for an equitable distribution of their marital property in accordance with the Divorce Code of 1980. Subject to the provisions of this agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights or demands whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all cause or causes of action for divorce and except in any or all causes of action for breach of any provisions of this Agreement. Each party also waives his or her right to request marital counseling pursuant to 23 Pa.C.S.A. Section 3302. (Initials) 3 ~ff~(Initials) Draft # 1 September 20, 2003 7. EQUITABLE DISTRIBUTION: A. Real Property: 1. Marital Residence: The parties are in the process of selling the property located at 1374 Indian Peg Road, Boiling Springs, Pennsylvania (the "marital residence") with closing expected to be in late October, 2003. The parties will split the proceeds of the sale of the property after all costs 50/50. 2. Timeshare: The parties will sell their timeshare property located in West Palm Beach, Florida and split the proceeds of the sale, after all costs, 50/50. B. Personal Property: As of the date of the execution of this Agreement, the parties have equitably divided their personal property. Husband relinquishes his right, title, claim and interest in and to the furniture, fixtures, goods, appliances, equipment and personal items in the possession of Wife. Wife relinquishes her right, title, claim and interest in and to the furniture, fixtures, goods, appliances, equipment and personal items in the possession of Husband. C. Pets: Wife shall retain sole ownership and possession of the parties' three (3) cats and one (1) dog. D. Motor Vehicles: With respect to the motor vehicles owned by one or both of the parties, they agree as follows: (1) Husband shall retain the Chevrolet truck. (2) Wife shall retain the 2001 Nissan Xterra. (3) All automobile titles and insurance policies will be corrected to reflect the ownership of each vehicle. (Initials) 4 "~~(Inifials) Draft #1 September 20, 2003 Individual Retirement Accounts, Employment Benefits: Pensions And Each party shall retain sole ownership and control of their individual liRAs, Pensions and Employment benefits. Specifically, Wife shall retain her Pennsylvania SERS and Husband shall retain his 401k. F. Joint Bank and Charge Accounts: · All joint bank and charge accounts, credit card accounts and any other joint accounts shall be terminated and each party shall take those steps necessary to have the other removed as a responsible [)arty from any such account. Wife shall retain all of the current balances in her current savings and checking accounts. Husband shall retain all of the current balances in his current savings and checking accounts. G. Property to Wife: The parties agree that Wife shall own, possess, and enjoy free from any claims of Husband, the property awarded to her by the terms of this Agreement. Husband hereby quitclaims, assigns and conveys to Wife all such property together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Husband to Wife. H. Property to Husband: The parties agree that Husband shall own, possess, and enjoy free from any claims of Wife, the properly awarded to him by the terms of this Agreement. Wife hereby quitclaims, a§signs and conveys to Husband all such property together with any insurance policies covering that property, and any ,escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Wife to Husband. I. Miscellaneous Property: All property not specifically addressed herein shall hereafter be owned by the party to whom the property is titled, and if untitled, the party in possession. (Initials) ~~(Initials) Draft # 1 September 20, 2003 This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from each to the other. J. Tax Liability: The parties believe and agree that the division of property heretofore made by this Agreement is a non-taxable division of property between co- owners rather than a taxable sale or exchange of such property. Each party promises not to take any position with respect to the adjusted basis of the property assigned to him or her with respect to any other issue which is inconsistent with the position set forth in the preceding sentence on his or her Federal or State income tax returns. 8. LIFE INSURANCE: Each party shall continue to own any life insurance policies currently in effect, without restriction as to the designation of beneficiaries. 9. ALIMONY.. Both parties mutually waive all support, alimony and maintenance of any kind from the other party. Wife acknowledges and agrees that the provisions of this Agreement providing for the waiver of alimony to her by her Husband are fair, adequate, and satisfactory to her and are based upon her actual need, her Husband's ability to pay, the duration of the parties' marriage and other relevant factors which have been taken into consideration by the parties. Although the approval of this Agreement by a court of competent jurisdiction in connection with this action in divorce or annulment filed by Husband or Wife shall be deemed an order of the court and may be enforced as provided in 12 Pa.C.S.A. Section 3701, as amended, this Agreement, insofar as it pertains only to support for Wife and the payment of alimony following the entry of a final Decree in Divome between the parties, may not be modified, suspended, terminated, or reinstated at the instance of request of the Wife or Husband, or subject to further order of any court upon changed circumstances of the Wife or Husband of a substantial or continuing nature, or for any reason claimed by Wife whatsoever. Upon that condition, Wife hereby accepts the provisions of this Agreement in lieu of and in full and final settlement and satisfaction of all (Initials) 6 (Initials) Draft # 1 September 20, 2003 claims and demands that she may now or hereafter have against Husband or her support and maintenance of herself and for alimony, and Husband and Wife further voluntarily and intelligently waives and relinquishes any right to seek a modification, suspension, termination, reinstitution, or other court order with respect to the terms of this Agreement pertaining to the payment of support to Wife or the payment of alimony by Husband. Husband acknowledges and agrees that the provisions of this Agreement providing for equitable distribution of marital property are fair, adequate and satisfactory to him and are accepted by him in lieu of and in full and final settlement and satisfaction of any claims or demands that he may now have or hereafter have against the Wife for support, maintenance or alimony. Husband I~urther voluntarily and intelligently waives and relinquishes any right to seek from the Wife any payment for support or alimony. 10. HEALTH INSURANCE: Each party shall be responsible for their own health insurance coverage and the costs of any uninsured medical expenses. 11. ALIMONY PENDENTE LITE, COUNSEL FEES AND EXPENSES: Husband and Wife acknowledge and agree that the provisions of this Agreement providing for the equitable distribution of marital property of the parties are fair, adequate and satisfactory to them. Both parties agree to accept the provisions set forth in this Agreement in lieu of and in full and final settlement and satisfaction of all claims and demands that either may now or hereafter have against the other for alimony pendente lite, counsel fees or expenses or any other provision for their support and maintenance before, during and after the commencement of the proceedings for divorce or annulment between the parties. 12. INCOME TAX 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 ( tia s) 7 ( ti s) Draft #1 September 20, 2003 tax deficiency or assessment and 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 responsible for the actions, misrepresentations or failures to disclose separate income resulting in tax liability. The parties shall file separately for tax year 2003 and thereafter. 13. WAIVERS OF CLAIMS AGAINST ESTATES: Except as herein otherwise provided each party may dispose of his or her property in any way', and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of tlhe other as a result of the marital relationship, including without limitation, dower, curtsey, statutory allowance, widow's allowance, right to take intestacy, right to take against the will of the other, and right to act as administrator or executor of the other's estate. Each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims and both parties will revoke prior wills or testamentary documents. 14. AGREEMENT NOT PREDICA TED ON DIVORCE: It is specifically understood and agreed by and between the parties hereto and each of the said parties does hereby warrant and represent to the other, that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non- defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting an action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may or shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, covenanted and represented by Husband and Wife, each to the other, that this Agreement is lawful and enforceable and this warranty, _~(Initials) ~I c~ nitials) 8 - Draft # 1 September 20, 2003 covenant and representation is made for the specific purpose of inducing Husband and Wife to execute this Agreement. Husband and Wife each knowingly and understandingly hereby waives any and all possible claims that this agreement is, for any reason illegal or for any reason whatsoever, unenforceable in whole or in part. Husband and Wife each do hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever be estopped from asserting any illegality or unenforceability as to all or any part of this Agreement. 15. SUBSEQUENT DIVORCE: Wife at her cost by her counsel has filed an action for divorce under Section 3301 (c)of the Divorce Code. Simultaneously with the execution of this Agreement, both parties will execute Affidavits of Consent and Waivers of Notice to enable counsel for Wife to proceed with a no-fault divorce as soon as possible, providing Husband with a duplicate decree. The parties further agree that eaclh of them shall be responsible for their own attorney's fees. The parties shall be bound by the terms of this agreement, which shall be incorporated by reference into the Divorce Decree, shall not be merged in such Decree, but shall in all respects survive the same and be further binding as an enforceable contract, conclusive upon the parties. 16. BREACH AND ENFORCEMENT: If either party breaches any provision of this Agreement, the other party shall have the dght at his or her election, to sue for damages for such breach, or seek such other remedies or relief as may be responsible for payment of legal fees and costs incurred by the other in enforcing his or her rights under this Agreement. Reasonable interest shall be assessed from the date of breach. A. This Agreement may be specifically enforced by either Husband or Wife in Equity, and the parties hereto agree that if an action to enforce this Agreement is brought in Equity by either party, the other party will rnake no objection on the alleged ground of lack of jurisdiction of said Court on the ground that there is an adequate remedy (Initials) ~Initials) Draft # 1 September 20, 2003 at law. The parties do not intend or purport hereby to improperly confer jurisdiction on a Court in Equity by this Agreement, but they agree as provided herein for the forum of equity in mutual recognition of the present state of the law, and in recognition of the general jurisdiction of Courts in Equity over agreement such as this one. B. Notwithstanding anything to the contrary herein, Husband and Wife may also proceed with an action at law for redress of his or her rights under the terms of this Agreement, and in such event it is specifically understood and agreed that for and in specific consideration of the other provisions and covenants of this Agreement, each shall waive any right to a jury tdal so as to expedite the hearing and disposition of such case and so as to avoid undue delay. C. Each party further hereby agrees to pay and to save and hold harmless the other party from any and all attomey's fees and costs of litigation that either may sustain, or incur or become liable for, in any way whatsoever, or shall pay upon, or in terms or provisions of this Agreement by reason of any of the terms or provisions of this Agreement by reason of which either party shall be obliged to retain or engage counsel to initiate or maintain or defend proceedings against the other at law or equity or both in any way whatsoever, provided that the party who seeks to recover such attorney's fees, and costs of litigation must first be successful in whole or in part, before there would be any liability for attorney's fees and costs of litigation. It is the specific agreement and intent or the parties that a breaching or wrongdoing party shall bear the burden and obligation of any and all costs and expenses and counsel fees incurred by himself or herself as well as the other party in endeavoring to protect and enforce his or her rights under this Agreement. 17. ADDITIONAL INSTRUMENT: Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. (Initials) 10 Draft #1 September 20, 2003 18, VOLUNTARY EXECUTION: The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, with full knowledge of the assets of both parties, and that it is not the result of any duress or undue influence. The parties acknowledge that they have been furnished with all information relating to the financial affairs of the other which has been requested by each of them or by their respective counsel. 19. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. Husband and Wife acknowledge and agree that the provisions of this Agreement with respect to the distribution and divisions of marital and separate property are fair, equitable and satisfactory to them based on the length of their marriage and other relevant factors which have been taken into c. onsideration by the parties. Both parties hereby accept the provisions of this Agreement with respect to the division of property in lieu of and in full and final settlement and satisfaction of all claims and demands that they may now have or hereafter have against the other for equitable distribution of their property by and any court of competent jurisdiction pursuant to 23 Pa.C.S.A. Section 3501 et. ~eq. or any other laws. Husband and Wife each voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 20. DISCLOSURE: Husband and Wife represent and warrant to the other that he or she has made a full and complete disclosure to the other of all assets of any nature whatsoever in which either party has an interest, the sources and amount of the income of such party of every type whatsoever and of all other relevant and material facts relating to the subject matter of this Agreement. (Initials) 11 ~ImUals) Draft # 1 September 20, 2003 21. MODIFICATION 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 on any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 22. PRIOR AGREEMENT: It is understood and agreed that any and all property settlement agreements which may or have been executed pdor to the date and time of this Agreement are null and void and have no effect. 23. DESCRIPTIVE HEADINGS: The descriptive headings used herein are for convenience only. They have no effect whatsoever in determining the rights or obligations of the parties. 24. 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 covenant and agreement. 25. APPLICABLE LA W: This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 26. VOID CLAUSES: 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 Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. 27. AGREEMENT BINDING 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. ~¢~. (Initials) 12 ~/~-~ .(muals) Dra~ # 1 September 20, 2003 IN WITNESS WHEREOF, the parties hereto have set their Hands and Seals the day and year first above written. Witness Witness COMMONWEALTH OF PENNSYLVANIA COUNTY OF I~,n~? ! ss. -Ih , BEF E ME, the undersigned authority, on this 3D-day of ~.2~~, 2003, personally appeared Kelly Smith, known to me to be the person who executed the foregoing instrument, and who acknowledged to me that she executed same for the purposes and considerations therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS 304h~ day of . C~C~-~.~-- ,2003. - Notarial Seal S, Dawn Gladfelter, Notary Public Dillsburg Boro, York C~unty My Commission Expire,, May 11, 2005 Member, Pennsylvama Asso~atl0n of Notaries COMMONWEALTH OF PENNSYLVANIA Notary Pub/lic in and fo~'the Commonwealth of Pennsylvania COUNTY OF _ t~'-- SS. BEFORE ME, the undersigned authorty, on this ~OJ~ day of ~ c.-{-o~:z.~ ,2003, persona y appeared Michael Barnhart, known-to me to be the person who executed the foregoing instrument, and who acknowledged to me that he executed same for the purposes and considerations therein expressed. ~) ~ {&.~EN, UNDER MY HAND AND SEAL OF OFFICE THIS ~J~---- day of 2003, Notadal Seal MY Commiss,on Expires May :1'~, 2005 ~oO~T~rY PublicI in and for ~[-te Member, PennsylvaniaAssociaticnotNotariesmonwealth of Pennsylvania KELLY SMITH, * formerly KELLY BARNHART, * Plaintiff * VS. * MICHAEL BARNHART, * Defendant * IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2865 Civil Term CIVIL AC'rlON - LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I 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 the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: ~ll~\l(.}'~ KELLY SMITH, formerly KELLY BARNHART, Plaintiff vs. MICHAEL BARNHART, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2865 Civil Term CIVIL ACTION - LAW IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THEPROTHONOTARY: Transmit the record, together withthefollowing information, to the Courtfor entry of a divorce decree: 1. Grounds for Divorce: Irretrievable breakdown under Section 3301(c). 2. Date and manner of service of the Complaint: By U.S. Mail. certified mail. return-receipt requested, restricted delivery, was signed for on June 30. 2003. An Affidavit of Service was filed with the Court on July 11. 2003. 3. Complete either Paragraph (a) or (b): (a) Date of execution of the Affidavit of Consent required by Section 3301 (c) of the Divorce Code: By Plaintiff.' November 21 2.,_~003; By Defendant: November 21.2003. (b) (1) Date of execution of the Affidavit required by Section 3301 (d) of the Divome Code: .(2) Date of filing and service of the Plaintiff's Affidavit upon the Respondent: 4. Related claims pending: All related claims were resolved bv a Marital Settlement Agreement dated September 30. 2003. Said Marital Settlement A~,reement is being filed with the court simultaneously with this Praecipe, 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: (b) Date Plaintiff's Waiver of Notice in Section 3301(c) Divorce is beingfiled with the Prothonotary: simultaneously with this Praecipe; Date Defendant's Waiver of Notice in Section 3301(c) Divorce was filed with the Prothonotary: ~ with this Praecipe, Date:~__ By: Jennifer L Frechette, Esqmre Attorney for Plaintiff KELLY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLINTY STATE Of _.,~~ ~ PENNA. VERSUS MICHAEL BARNHART, Defendant NO. 0q-~S~q-Civil T~rm DECREE IN DIVORCE ~,~)? , IT IS ORDERED AND DECREED THAT KELLY SMITH , PLAINTIFF, AND MICHAEL BARNHART DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD I~N FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; The terms and provisions of the Marital Settlement Agreement signed by both parties on September 30, 2003 are hereby incorporates but not merged into the Decree in uivorce and remain binding upon the parties. ATTEST: PROTHONOTARY