HomeMy WebLinkAbout10-0886t? n?? va`nMruN
John W. Purcell, Jr., Esquire
ID #29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
jpurcell@pkh.com
2010 FEB -3 F" 2t 2 t
0 MM
LOUANN R. KELLY,
Plaintiff
vi.
ROBERT E. KELLY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 10 - 686 ai , i 1 1 ertA
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 Courthouse, One Courthouse Square, Room 100,
Carlisle, PA 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT
HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013 35a pp Pp ATT`/
(717) 1249-3166 Cl(_* A48y5
kT* x3'71/75-
?Y
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mfis adelante en las siguientes p6ginas, debe tomar accibn
dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso
radicando personalmente o por medio de un abogado una comparecencia escrita y
radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas
presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como
se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de
dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el
demandante puede ser dictado en contra suya por la Corte sin mds aviso adicional. Usted
puede perder dinero o propiedad u otros derechos importantes para usted.
LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013
(717) 1249-3166
(800) 990-9108
John W. Purcell, Jr., Esquire
ID #29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
jpurcell@pkh.com
LOUANN R. KELLY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. c
ROBERT E. KELLY, CIVIL ACTION - LAW
Defendant IN DIVORCE
COMPLAINT IN DIVORCE
AND NOW COMES Plaintiff, Louann R. Kelly, by her attorneys, Purcell, Krug & Haller,
and who avers as follows:
DIVORCE PURSUANT TO SECTION 3301(c) or 3301(d)
OF THE DIVORCE CODE
1. Plaintiff is Louann R. Kelly, an adult individual whose current address is 1216
Chelsen Cross, Mechanicsburg, Cumberland County, Pennsylvania 17050.
2. Defendant is Robert E. Kelly, an adult individual whose current address is 1216
Chelsen Cross, Cumberland County, Pennsylvania 17050.
3. Plaintiff has been a bona fide resident of the Commonwealth of Pennsylvania
for at least six (6) months immediately prior to the filing of this Complaint.
4. Plaintiff and Defendant were married on July 21, 1990, in Camp Hill,
Pennsylvania.
5. There have been no prior actions in divorce or annulment between the parties.
6. The Plaintiff avers that there are two (2) children born of this marriage, only one
of which is under the age of 18: Ryan Kelly, 17 (age), born November 16, 1992;
7. Neither of the parties in this action is presently a member of the Armed Forces.
8. The Plaintiff and Defendant are both citizens of the United States.
9. The marriage is irretrievably broken.
10. Plaintiff has been advised of the availability of counseling and that the Plaintiff
may have the right to request that the Court require the parties to participate in counseling.
Being so advised, Plaintiff does not request that the Court require the parties to participate in
counseling prior to a Divorce Decree being handed down by the Court.
WHEREFORE, Plaintiff requests this Honorable Court to enter a Decree in Divorce.
PURCELL, KRUG & HALLER
By:
DATE: '-9} 1 { t o
rcell,-Jr., Esquire
1719 orth Front Street
H sburg, PA 17102
17) 234-4178
Attorney for Plaintiff
2
VERIFICATION
I hereby verify that the facts contained in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief.
I understand that false statements made herein are subject to the penalties of 18
Pa. C.S. Section 4904, relating to unsworn falsification to authorities.
G
Date:-I i e-`( / /U
7ARY
21101 0 FEB 16 PH 16
John W. Purcell, Jr., Esquire
ID #29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
jpurcell@pkh.com
LOUANN R. KELLY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 104)66-elVIL TERM
ROBERT E. KELLY, CIVIL ACTION - LAW
Defendant IN DIVORCE
ACCEPTANCE OF SERVICE
I, Robert E. Kelly, the Defendant in the above-captioned action, hereby certify that on
the 12th day of February, 2010, 1 accepted service of the Complaint filed against me in the
above-captioned action on February 3, 2010.
Sworn and subscribed to
before me this 04 day
of C--?2i (. , 2010.
W 'lot.
Notary Publi
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Kimberly S. DeFalco, Notary Public
City of Harrisburg, Dauphin County
My Commission Expires Jan. 17, 2013
Q z _
Robert E. Kelly
Member, Pennsylvania Association of Notaries
LOUANN R. KELLY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. 10- 88(0
NO. 49-866-CIVIL TERM
ROBERT E. KELLY, CIVIL ACTION-LAW
Defendant IN DIVORCE
AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on
February 3, 2010.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days
have elapsed from the date of filing and service of the Complaint.
3. 1 consent to the entry of a final decree of divorce after service of notice of
intention to request entry of the decree.
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 authorities.
Q93-
Date:
Robert E. Kelly
e_':
_1 _?J D i ,
LOUANN R. KELLY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. 10-88(0
NO. 49-866-CIVIL TERM
ROBERT E. KELLY, CIVIL ACTION-LAW
Defendant IN DIVORCE
WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE
UNDER 43301(c) OF THE DIVORCE CODE
I consent to the entry of a final decree of divorce without notice.
2. 1 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. 1 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. §4904 relating
to unsworn falsification to authorities.
Date: 10 1 2-1111
Robert E. Kelly
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LOUANN R. KELLY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. 10-88(o
NO. 10=886 CIVIL TERM
ROBERT E. KELLY, CIVIL ACTION-LAW
Defendant IN DIVORCE
AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on
February 3, 2010.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days
have elapsed from the date of filing and service of the Complaint.
3. 1 consent to the entry of a final decree of divorce after service of notice of
intention to request entry of the decree.
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 authorities.
Date: A 1l
62
Lou nn R. Kelly
cry
in
LOUANN R. KELLY, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. 10-88(o
NO. 49 866 CIVIL TERM
ROBERT E. KELLY, CIVIL ACTION-LAW
Defendant IN DIVORCE
WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE
UNDER 63301(c) OF THE DIVORCE CODE
I consent to the entry of a final decree of divorce without notice.
2. 1 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. 1 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. §4904 relating
to unsworn falsification to authorities.
Date:
Louan R. Kelly V =
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10- 6840
-Ib 86(&
ADDENDUM TO SEPARATION AND
PROPERTY SETTLEMENT AGREEMENT
THIS ADDENDUM TO AGREEMENT, made this ),;- day of
Ty N 2. , 2011, by and between Louann R. Kelly, hereinafter referred to as
Wife, and Robert E. Kelly, hereinafter referred to as Husband.
WITNESSETH:
WHEREAS, the parties entered in a Property Settlement Agreement (the
"Agreement") dated January 22, 2010, containing a provision, inter alia, dealing
with the sale of their marital home and the distribution of proceeds; and
WHEREAS, The parties desire to amend that provision as follows:
NOW, THEREFORE, in consideration of the above recitals and the
following covenants and promises mutually made and mutually to be kept, the
parties heretofore, intending to be legally bound, covenant, promise and agree as
follows:
1. Paragraph 6 (C), Cash Distribution, of the Agreement is hereby
modified to delete the requirement that Husband shall receive the sum
of $5,000.00 "to be paid in the future". No further payments shall be
required by Wife, and Husband hereby waives any interest therein, or
in the proceeds of the sale of the marital home located at 1216
Chelsen Cross, Mechanicsburg, Cumberland County, Pennsylvar?p
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17050.
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2. In all other respects, the aforementioned agreement shall remain
unchanged.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
WITNESS:
Louann R. Kelly
C! ?-- ?: _ -
Robert E. Kelly
lI . ?
SEPARATION AND
PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT, made this ?J day of Xv 2010, by and
between Louann R. Kelly, hereinafter referred to as Wife, and Robert E. Kelly,
hereinafter referred to as Husband.
WITNESSETH:
WHEREAS, Husband and Wife were lawfully married on July 21, 1990; and
WHEREAS, two (2) children were born of this marriage, Katheen Kelly and Ryan
Kelly, (hereinafter referred to as "children"); and
WHEREAS, certain differences have arisen between the parties as a result of
which they separated on November 14, 2009, and now live separate and apart from one
another, and are desirous, therefore, of entering into an Agreement which will distribute
their marital property in a manner which is considered to be an equitable division of all
joint property, and will provide for the mutual responsibilities and rights growing out of
the marriage relationship; and
WHEREAS, there has been a complete disclosure of the earnings and property
of each party, and each understands his/her rights under the Divorce Code of the
Commonwealth of Pennsylvania; and
WHEREAS, the parties hereto, Husband choosing not to be represented by
counsel, and Wife by her attorney, John W. Purcell, have come to the agreement, which
follows:
?l Separatidn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 2
NOW, THEREFORE, in consideration of the above recitals and the following
covenants and promises mutually made and mutually to be kept, the parties heretofore,
intending to be legally bound, covenant, promise and agree as follows:
Separation. It shall be lawful for each party at all times hereafter to live
separate and apart from the other party at such place that he or she may from time to
time choose or deem fit. The foregoing provision shall not be taken as an admission on
the part of either party of the lawfulness of the causes leading to their living apart.
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 molest
the other nor attempt to endeavor to molest the other, nor compel the other to cohabit
with the other, nor in any way harass or malign the other, nor in any way interfere with
the peaceful existence, separate and apart from the other.
3. Wife's Debts. Wife represents and warrants to Husband that since the
separation 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. Husband represents and warrants to Wife that since
the separation he has not and in the future he will not contract or 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.
Separatidn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 3
5. Outstanding Joint Debts. The parties acknowledge and agree that they
have no outstanding debts and obligations incurred prior to the signing of this
Agreement, except accounts that follow with approximate amounts:
A. Members 15t Federal Credit Union
PS Loan 106180-L0003 $ 4,889.
PS 152487-L0001 $ 2,303.
Home Equity 106180-L0012 $ 7,498.
B. Clearview FCU Visa
Acct # (Robert): $ 4,800
Acct # (Louann) $19,509
C. Bank of America Amway Visa $12,028
D. Chase Slate Visa $ 8,641
E. Kohl's $ 2,815
Wife will assume full responsibility for payment of all debts listed above with exception
of Husband's Clearview FCU Visa account. Both parties hereby indemnify, defend and
hold each other harmless for any claim or demand made against the other for any debt
they have assumed responsibility for.
In the event that either party contracted or incurred any debts since the date of
separation, the party who incurred said debt shall be responsible for the payment
thereof, regardless of the name in which the account may have been charged, and such
party shall indemnify, defend and hold the other party harmless from any claim or
demand made against that party by reason of such debt.
Separatidn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 4
6. Equitable Distribution of Marital Property. The parties have attempted to
distribute their marital property in a manner which conforms to the criteria set forth in
Section 3502 of the Pennsylvania Divorce Code and taking into account the following
considerations: the length of marriage; the fact that it is the second marriage for
Husband and Wife; the age, health, station, amount and sources of income, vocational
skills, employability, estate, liabilities and needs of each of the parties; the contribution
of each party to the education, training or increased earning power of the other party;
the opportunity of each party for future acquisitions of capital assets and income; the
sources of income of both parties, including but not limited to medical, retirement,
insurance or other benefits; the contribution or dissipation of each party in the
acquisition, preservation, depreciation or appreciation of the marital property, including
the contribution of each spouse as a homemaker; the value of the property set apart to
each party; the standard of living of the parties established during the marriage; and the
economic circumstances of each party at the time the division of property is to become
effective.
The division of existing marital property is not intended by the parties to
constitute in any way a sale or exchange of assets, and the division of being effected
without the introduction of outside funds or other property not constituting marital
property. The division of property under this Agreement shall be in full satisfaction of all
marital rights of the parties.
A. Distribution of Personal Property.
The parties hereto mutually agree that they have effected a satisfactory
division of the furniture, household furnishings, appliances, and other household
Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 5
personal property between them, and they mutually agree that each party shall
from and after the date hereof be the sole and separate owner of all such
tangible personal property presently in his or her possession, and this Agreement
shall have the effect of an assignment or bill of sale from each party to the other
for such property as may be in the individual possession of each of the parties
hereto.
The parties hereto have divided between themselves, to their mutual
satisfaction, all items of tangible and intangible marital property. 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 and/or under
the control 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. Property shall be deemed to be in the possession or under the
control of either party if, in the case of tangible personal property, the item is
physically in the possession or control of the party at the time of the signing of
this Agreement and, in the case of intangible personal property, if any physical or
written evidence of ownership, such as passbook, checkbook, policy or certificate
of insurance or other similar writing is in the possession or control of the party.
Husband and Wife shall each be deemed to be in the possession and control of
their own individual pension or other employee benefit plans or retirement
benefits of any nature to which either party may have a vested or contingent right
or interest at the time of the signing of this Agreement, and neither will make any
claim against the other for any interest in such benefits, except as stated herein.
Separatidn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 6
From and after the date of the signing of this Agreement, both parties shall
have complete freedom of disposition as to their separate property and any
property which is in their possession or control, pursuant to this Agreement, and
may mortgage, sell, grant, convey, or otherwise encumber or dispose of such
property, whether real or personal, whether such property was acquired before,
during or after marriage, and neither Husband nor Wife need join in, consent to,
or acknowledge any deed, mortgage, or other instrument of the other pertaining
to such disposition of property.
Notwithstanding the above, Husband shall retain possession and
ownership of the cuckoo clock; gossip bench; wooden television cabinet, and any
other item of personal or household use the parties may from time to time
mutually agree upon.
B. Distribution of Real Estate.
Husband shall transfer to Wife, concurrent with the execution of this
Agreement, all of his interest in and title to their jointly owned real estate at 1216
Chelsen Cross, Mechanicsburg, Cumberland County, Pennsylvania 17050, in
exchange for which Wife shall be solely responsible for the current mortgage
obligation to Bank as well as for the payment of all current and future taxes,
insurance and utility bills relative to said real estate. Wife shall pay and
discharge said obligations on said premises, and shall indemnify Husband from
any loss by reason of her default in the payment thereof, and shall save Husband
harmless from any future liability with regard thereto.
Separati6n and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 7
C. Cash Distribution.
In consideration for the transfer of the above referenced real estate, Wife
shall pay to Husband the total sum of $25,000, payable as follows: $20,000 upon
settlement of a home equity loan or refinancing with an appropriate lending
institution, with an additional amount of $5,000 to be paid in the future, but no
later than upon the sale of the marital home by Wife.
If Wife is unable to sell the home within six (6) months of listing, thereafter
Husband shall contribute 'h of the then monthly mortgage payment until the
house is sold.
D. Annuity Accounts.
Both parties own an annuity or annuities through the John Hancock
Company. Wife shall retain ownership of Annuity # 1713201, while Husband shall
retain Annuity # 1713202. Any documents needed to split the account shall be
signed by either party upon request of the other.
7. Vehicles. Notwithstanding Paragraph 6 of this Agreement, Wife shall
retain possession and ownership of the 2001 Toyota Avalon and the 1995 Toyota
Avalon presently in her possession. Husband hereby transfers all of his right, title and
interest in said vehicle to Wife. Husband shall sign any title or other documents
necessary to transfer ownership of said vehicle at any time, upon demand, and further
shall indemnify Wife for any costs, including actual counsel fees, incurred by Wife to
enforce this provision.
8. Alimony. Both parties acknowledge and agree that the provisions of this
Agreement providing for equitable distribution of property are fair, adequate and
Separatibn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 8
satisfactory to them, and are accepted by them in lieu of and in full and final settlement
and satisfaction of any claims or demands that either may now or hereafter have
against the other for support, maintenance or alimony. Husband and Wife further
voluntarily and intelligently waive and relinquish any right to seek from the other any
payment for support or alimony, (except as set forth herein). Each party shall
indemnify, defend and hold the other harmless against any future action for either
support or alimony, modification or extension of same, brought by or on behalf of the
other and the results of such action, such indemnity to include the actual counsel fees of
9. 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 is fair, adequate and satisfactory to them.
Both parties shall 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, or any other provision for
their support and maintenance before, during and after the commencement of any
proceedings for divorce or annulment between the parties. Each party agrees to
indemnify, defend and save the other harmless from any action commenced against the
other for alimony pendente lite, or spousal support.
Notwithstanding the above, both parties shall equally share the legal fees and
costs associated with the preparation of this Agreement, and the filing and finalizing of
any Divorce action. A written statement from Wife's attorney shall be conclusive
evidence of the actual costs. All other legal expenses shall be the responsibility of the
party incurring them, and neither party shall be responsible for the payment of the
Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 9
other's legal expense or costs, except as set forth in paragraph 18 relating to breach of
this agreement, and both parties shall indemnify, defend and save the other harmless
from any action commenced against the other for the same.
10. Dependants.
It is anticipated that the parties' son, Ryan Kelly, will continue to be
financially dependant on his parents for the foreseeable future. To that end the parties
have set up their estates to help minimize future financial effects on their son, and have
created a Special Needs Trust for his benefit. Husband presently holds US Savings
bonds in an approximate amount of $10,000, which shall be liquidated and the proceeds
placed in the Special Needs Account set up by Wife, Tax ID# 27-6336449, which shall
be managed by Wife.
In addition, Husband shall contribute the sum of $400 per month to Wife on
account of both children's needs and expenses. Should Husband lose his job from
either employer through no fault of his own, his obligation to continue payments of the
above $400 per month, and his obligation to contribute to the mortgage pursuant to
paragraph 6(c), may be modified by agreement of the parties in accordance with
Husband's actual income from all sources, and in the event the parties cannot agree,
the amount shall be determined by a court entering the Divorce Decree in this matter.
This paragraph shall be null and void upon sale of the house.
11. Prior Tax Returns. The parties acknowledge that they have filed various
joint income tax returns during the course of their marriage. In the event that any
additional taxes, penalties or interest are assessed as a result of any such joint return,
the party responsible for under-reporting income or claiming any improper deduction
Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 10
shall indemnify and save the other party harmless from such tax liability, penalties,
interest, counsel fees, accountant's fees, costs and expenses.
12. Divorce. A Complaint in Divorce has not been filed as of the date of the
execution of this Agreement, but is contemplated by both parties, and either party shall
be free to proceed without further delay to secure the divorce. Both parties shall sign an
affidavit evidencing their consent to the divorce, pursuant to Section 3301(c) of the
Divorce Code. In the event, for whatever reason, either party fails or refuses to execute
such affidavit upon the other party's timely request, that party shall indemnify, defend
and hold the other harmless from any and all additional expenses, including actual
counsel fees, resulting from any action brought to compel the refusing party to consent.
Each party hereby agrees that a legal or equitable action may be brought to compel him
or her to execute a consent form and that, absent some breach of this Agreement by
the proceeding party, there shall be no defense to such action asserted.
13. Time of Distribution. The assets and interests to be transferred under and
pursuant to this Agreement shall be conveyed and transferred to the respective parties
immediately upon the execution of this Agreement. All spousal support and other such
obligations, including alimony, shall immediately terminate. The parties shall cooperate
by executing whatever documents are necessary to effectuate a divorce under Section
3301(c) or 3301(d) of the Pennsylvania Divorce Code, and this Agreement to cooperate
shall be enforceable by an assumpsit action for specific performance. However, upon
refusal to consent, all distributed property shall be returned to the party originally in
possession, until the time of final decree.
Separatibn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 11
14. Reconciliation. Notwithstanding a reconciliation between the parties, this
Agreement shall continue to remain in full force and effect absent a writing signed by
the parties stating that this Agreement is null and void.
15. Release. 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,
indemnify (including actual legal fees) and discharge the other of and from all causes of
action, claims, rights, or demands whatsoever, in law or equity, civil or criminal,
including equitable distribution, spousal support, alimony, counsel fees, alimony
pendente lite, and expenses which either of the parties against the other ever had, now
has, or may have in the future under the Pennsylvania Divorce Code, as amended, or
under any other statutory or common law, except any and all causes of action for
divorce and 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 Section
3302 of the Divorce Code.
16. 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 the
other as a result of the marital relationship, including without limitation, dower, curtesy,
statutory allowance, widow's allowance, right to take in intestacy, right to take against
the Will of the other, and right to act as administrator or executor of the other's estate,
and any right existing now or in the future under the Pennsylvania Divorce Code, as
Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 12
amended from time to time, and 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. Each further waives any right to inherit or receive property or act as the
personal representative of the estate of the other by Will, Codicil, intestacy, or insurance
policy, unless such Will, Codicil, or insurance policy (designation of beneficiary) is dated
subsequent to the effective date of this Agreement.
17. Rights on Execution. Immediately upon the execution of this Agreement,
the rights of each party against the other, despite their continuing marital status, shall
terminate and be as if they were never married.
18. Breach. In the event of breach of any of the terms of this Agreement, the
nonbreaching party shall be paid, as part of any award or judgment against the
breaching party, all costs, including actual counsel fees paid to his or her attorney.
19. Incorporation in Final Divorce. The terms of this Agreement shall be
incorporated but shall not merge in the final divorce decree between the parties. Any
Court having jurisdiction shall enforce the provisions of this Agreement as if it were a
Court Order. This Agreement shall survive in its entirety, resolving the spousal support,
alimony, equitable distribution and other interests and rights of the parties under and
pursuant to the Divorce Code of the Commonwealth of Pennsylvania, and no court
asked to enforce or interpret this Agreement shall in any way change the terms of this
Agreement. This Agreement may be enforced independently of any support order,
divorce decree or judgment and its terms shall take precedence over same, remaining
the primary obligation of each party. This Agreement shall remain in full force and effect
Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 13
regardless of any change in the marital status of the parties. It is warranted,
covenanted and represented by Husband and Wife, each to the other, that this
Agreement is lawful and enforceable, and this warranty, covenant and representation is
made for the specific purpose of inducing the parties to execute the Agreement.
20. Additional Instruments. 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, including any spousal consent waivers to non-marital
property, if needed.
21. Separability. In case any provision of this Agreement should be held to be
contrary to, or invalid under, the law of any country, state or other jurisdiction, such
illegality and invalidity shall not in any way affect the other provisions hereof, all of which
shall continue, nevertheless, in full force and effect, and each paragraph herein shall be
deemed to be a separate and undisputed covenant and agreement.
22. Entire Agreement. This Agreement contains the entire, complete and
exclusive understanding of the parties, and there are no representations, warranties,
covenants and 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 division 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 consideration 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
r Separatibn and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 14
have or hereafter have against the other for equitable distribution of their property by
any court of competent jurisdiction pursuant to Section 3502(d) of the Divorce code 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
right to seek court relief for the purpose of enforcing the provisions of this Agreement.
23. 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
of the provisions of this Agreement shall not be construed as a waiver of any
subsequent default of the same or similar nature.
24. Intent. It is the intent of the parties by this Agreement to fully and finally
foreclose any resort to the courts for relief on the basis of any statute or case law
presently existing or which may exist at some time in the future within the
Commonwealth of Pennsylvania, including but not limited to equitable distribution,
alimony and other relief under the Pennsylvania Divorce Code, as amended. This
Agreement has been drafted and accepted on the basis that such resort would
constitute a breach under this Agreement, entitling the nonbreaching party to
reimbursement for actual counsel fees. Other than as provided by the terms of this
instrument, it is intended that the court shall treat the parties as if they had never
entered into a marital relationship. This Agreement shall be construed in accordance
with the Laws of the Commonwealth of Pennsylvania which are in effect as of the date
y Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 15
of the execution of this Agreement and, where such law is inconsistent, the terms of this
instrument shall govern.
25. Voluntary Execution. The provisions of this Agreement and their legal
effect have been fully explained to Wife by her counsel, (the right to counsel and legal
explanation is known and voluntarily waived by Husband) 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 or are
aware of all information relating to the financial affairs of the other which has been
requested by each of them or by their respective counsel. Each party further
acknowledges that each has conducted his own independent investigation into the
existence of the other's assets and liabilities and is not depending upon any
representations made by the other party in agreeing to the terms hereof.
26. Descriptive Headings. The descriptive headings used herein are for
convenience only. They shall have no effect whatsoever in determining the rights or
obligations of the parties.
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.
Separation and Property Settlement Agreement: Louann R. Kelly and Robert E. Kelly Page 16
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
WITNESS:
- )
Loua n R. Kelly%
Robert E. Kelly
John W. Purcell, Jr., Esquire
ID #29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
jpurcell@pkh.com
LOUANN R. KELLY,
Plaintiff
V.
ROBERT E. KELLY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
10-88&0
NO. 1•A-866 CIVIL TERM
CIVIL ACTION-LAW
IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Transmit the record, together with the following information, to the Court for entry
of a Divorce Decree:
1. Ground for divorce: Irretrievable breakdown under §3301(c or d) of the
Divorce Code.
2. Date and manner of service of the Complaint: Complaint was served by
Acceptance of Service on February 3, 2010.
3. Complete either paragraphs (a) or (b).
(a) Date of execution of the Affidavit of Consent required by §3301(c)
of the Divorce Code: By Plaintiff: October 21, 2011 and By
Defendant: October 21, 2011.
(b) (1) Date of execution of the Affidavit required by §3301(d) of the
Divorce Code: ;
(2) Date of filing and service of the Plaintiff's Affidavit upon the
Respondent:
4. Related claims pending: None.
5. Complete either (a) or (b).
(a) Date and manner of service of the notice of intention to file a
Praecipe to Transmit Record, a copy of which is attached
(b) Date Plaintiffs Waiver of Notice in §3301(c) Divorce was filed with
the Prothonotary: filed contemporaneously herewith;
Date Defendant's Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: filed contemporaneously herewith.
PURCELL, KRUG & HALLER
By:
,- o919North Pucell, Jr., Esqui
ID 55
Front Street
Harrisburg, PA 17102
(717) 234-4178
Attorney for Plaintiff
DATE: \0 -',-\ \