HomeMy WebLinkAbout04-3919
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€::I ORIGINAL
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
MICHELLE A. HAWK,
Plaintiff
v.
CHRISTOPHER M. UMBERGER,
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to
defeud against the claims set forth iu the following pages,
yon must take prompt action. Yon 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, inclnding
custody or visitation of your children.
When the gronnd for divorce is indignities or
irretrievable breakdown of the marriage, yon may
request marriage counseling. A list of marriage
counselors is available in the Office of the Prothonotary
at the Cumberland County Courthouse, Carlisle,
Pennsylvania.
IF YOU DO NOT FILE A CLAIM FOR ALIMONY,
DIVISION OF PROPERTY, COUNSEL FEES OR
EXPENSES BEFORE THE FINAL DECREE OF
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 BAR ASSOCIA nON
32 S. BEDFORD STREET
CARLISLE, PAl 7013-3302
(717) 249-3166
NO.
tJ~'39/9 M
CIVIL ACTION - LAW
DIVORCE
A VISO PARA DEFENDER Y RECLAMAR DERECHOS
USTED HAD smo DEMANDADO EN LA CORTA. Si
desea defenderse de las quejas expuestas en las paginas
siguientes, debe tomar accion con prontitud. Se Ie avisa que
si no se deliende, el caso puede proceder sin usted y decreto
de divorcio 0 anulamiento puede ser emitido en su contra por
la Corte. Una Decision puedda tamblen ser emitida en su
contra por cualquier otra queja 0 compensacion reclamados
por el demandante. Usted puede perder dinero, 0
propiedades u otros derechos importantes para usted.
Cuando la base para el divorcio es indignidadas 0
rompimiento irreparable del matrimonio, usted puede
solicitar consejo matrimonial. Una lisla de conjeros
matrimoniales esta disponible en la olicina del Prothonotary,
en la Cumberland County Courtbouse, Carlisle,
Pennsylvauia.
SI USTED NO RECLAMA PENSION ALlMENTICIA,
PROPIEDAD MARITAL, HONORARlOS DE ABOGADO
U OTROS GASTOS ANTES DE QUE EL DECRETO
FINAL DE DlVORCIO 0 ANULAMIENTO SEA
EMITIDO, USTED PUEDE PERDER EL DERECHO A
RECLAMAR CUALQUIERA DE ELLOS.
USTED DEBE LLEVER ESTA PAPEL A UN
ABOGADO DE INMEDlATO. SI NO TIENE 0 NO PUEDE
PAGAR IN ABOGADO, VAYA 0 LLAME A LA
OFFICINO INDlCADA ABAJO PARA AVERlGUAR
DONDE PUEDE OBTENER ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. BEDFORD STREET
CARLISLE, PA 17013-3302
(717) 249-3166
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
MICHELLE A. HAWK,
Plaintiff
NO. 6'1- 3919 Ci.PJ -J..u.-
V.
CIVIL ACTION. LAW
CHRISTOPHER M. UMBERGER,
Defendant
DIVORCE
COMPLAINT
AND NOW, this \0 ~ay of G-u...~ J...r.\;f , 2004, comes the Plaintiff,
MICHELLE A. HAWK, by her attorney, Diane G,)Radc1iff, Esquire, and files this Complaint
in Divorce of which the following is a statement:
COUNT I
DIVORCE
1. The Plaintiff is MICHELLE A. HAWK, an adult individual who currently resides 1049
Powell's Valley Road, Dauphin County, Halifax, Pennsylvania since 2004.
2. The Defendant is CHRISTOPHER M. UMBERGER, an adult individual residing at P.O.
Box 473, Cumberland County, New Kingston, Pennsylvania since 2001.
3. Plaintiff and Defendant have been bona fide residents in the Commonwealth for at least
six (6) months previous to the filing of this Complaint.
4. Plaintiff and Defendant were married on December 21, 2002 at Mechanicsburg,
Cumberland County, Pennsylvania.
5. There have been no prior actions of divorce or annulment between the parties.
6. 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.
-2-
7. Defendant is not a member of the Armed Services of the United States or any of its
Allies.
8. Plaintiff avers that the grounds on which the action is based are:
a. Section 3301(c) Mutual Consent No-Fault: The marriage is irretrievably
broken;
b. Section 3301(d) Non-Consent No-Fault: The marriage is irretrievably broken
and the parties are now living separate and apart. Once the parties have lived
separate and apart for a period of two years, Plaintiff will submit an Affidavit
alleging that the parties have lived separate and apart for at least two (2) years
and that the marriage is irretrievably broken.
9. Plaintiff requests the Court to enter a decree of divorce.
WHEREFORE, Plaintiff requests this Honorable Court to enter a decree in divorce,
divorcing the Plaintiff and Defendant.
COUNT II
EQUITABLE DISTRIBUTION
10. Paragraphs I through 9 are incorporated by reference hereto as fully as though the same
were set forth at length.
11. Plaintiff and Defendant have acquired property, both real and personal, and incurred
debts during their marriage during the period from December 21, 2002, the date of their
marriage, until June 11, 2004, the date of their separation, all of which are "marital
property" or "marital debts".
12. Plaintiff and/or Defendant have acquired, prior to the marriage or subsequent thereto,
"non-marital property" which has increased in value since the date of marriage and/or
subsequent to its acquisition during the marriage, which increase in value is "marital
property" .
13. Plaintiff and Defendant have been unable to agree as to an equitable division of the
marital property and marital debts as of the date ofthe filing of this Complaint.
-3-
WHEREFORE, Plaintiff requests this Honorable Court to equitably divide all marital
property and debts of the parties.
Respectfully submitted,
-4-
VERIFICATION
MICHELLE A. HAWK verifies that the statements made in this Complaint are true
and correct. MICHELLE A. HAWK understands that false statements herein are made
subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to
authorities.
~~r
MICHELLE A. HAWK
Date: ~.9 _64-
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
PLaintiff
NO. 04.3919 CIVIL
V.
CIVIL ACTION - LAW
CHRISTOPHER M. UMBERGER,
Defendant
IN DIVORCE
ACCEPTANCE OF SERVICE
I, CHRISTOPHER M. UMBERGER, the Defendant in the above captioned action,
hereby accept service of the CompLaint duLy endorsed with a Notice to PLead, which
Endorsed CompLaint was filed in the above captioned matter on August 10, 2004.
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P.O. Box 473
New Kingstown, PA 17077
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
Plaintiff
V.
CHRISTOPHER M. UMBERGER,
Defendant
NO. 04.3919 CIVIL
CIVIL ACTION - LAW
IN DIVORCE
AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301 (c) of the Divorce Code was filed on August
10,2004.
2. The marriage of PLaintiff and Defendant is irretrievabLy broken and ninety (90) days
have eLapsed from the date of filing and service of 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.
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 8 Pa.c.S. Section 4904
relating to unsworn faLsification to authorities.
Dated:
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
PLaintiff
V.
CHRISTOPHER M. UMBERGER,
Defendant
NO. 04-3919 CIVIL
CIVIL ACTION - LAW
IN DIVORCE
AFFIDAVIT OF CONSENT
1. A CompLaint in Divorce under Section 3301 (c) of the Divorce Code was filed on August
10, 2004.
2. The marriage of Plaintiff and Defendant is irretrievabLy broken and ninety (90) days
have elapsed from the date of filing and service of 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.
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.
~~fENDANT
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
Plaintiff
V.
CHRISTOPHER M. UMBERGER,
Defendant
NO. 04-3919 CIVIL
CIVIL ACTION - LAW
IN DIVORCE
WAIVER OF NOTICE OF INTENTION TO REOUEST
ENTRY OF A DIVORCE DECREE UNDER
SECTION 3301(c) OF THE DIVORCE CODE
1. I consent to the entry of a final decree in 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 Waiver are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa C.S. !34904 reLating
to unsworn falsification to authorities.
Dated: 8 II k~-
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
PLaintiff
V.
CHRISTOPHER M. UMBERGER,
Defendant
NO. 04-3919 CIVIL
CIVIL ACTION - LAW
IN DIVORCE
WAIVER OF NOTICE OF INTENTION TO REOUEST
ENTRY OF A DIVORCE DECREE UNDER
SECTION 3301 (c) OF THE DIVORCE CODE
1. I consent to the entry of a final decree in 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 Waiver are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S. !34904 relating
to unsworn falsification to authorities.
Dated:
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
Plaintiff
v. : NO. 04-3919 CIVIL
CHRISTOPHER M. UMBERGER, : CIVIL ACTION - LAW
Defendant : IN DIVORCE
MARITAL AGREEMENT
BETWEEN
CHRISTOPHER M. UMBERGER
AND
MICHELLE A. HAWK
TABLE OF CONTENTS
INTRODUCTION AND PREAMBLE................................................... 1
SECTION I GENERAL PROViSiONS................................................. 2
1.01 Incorporation of Preamble .................................... 2
1.02 Divorce Decree ................................................. 2
1.03 Agreement to Be Incorporated into Divorce Decree ...... 2
1.04 Dates.. ... "0 .... '0' ............................................... 2
1.05 VoLuntary Execution ........................................... 3
1.06 Financial Disclosure ............................................ 3
1.07 Disclosure and Waiver of Procedural Rights ................ 3
1.08 Bankruptcy..... ................................................. 3
1.09 Personal Rights ................................................. 4
1.10 Mutual Release .................................................. 4
1.11 Income Tax Matters ............................................ 5
1.12 Effect of Reconciliation ....................................... 6
1.13 Mutual Cooperation ............................................ 6
1.14 Waiver or Modification to Be in Writing .................... 7
1.15 Agreement Binding upon Heirs ............................... 7
1.16 No Waiver of Default .......................................... 7
1.17 Breach ........................................................... 7
1.18 Manner of Giving Notice ....................................... 8
1.19 Integration ...................................................... 8
1.20 Law of Pennsylvania Applicable .............................. 8
1.21 Headings Not Part of Agreement ............................. 8
SECTION II DISTRIBUTION OF PROPERTY.......................................... 9
2.01 Final Equitable Distribution of Property.................... 9
2.02 After-Acquired Property....................................... 9
2.03 Waiver of Inheritance ......................................... 9
2.04 As Is Condition .................................................. 9
2.05 Personal Property.............................................. 9
2.06 Vehicles, Boats and the like .................................. 10
2.07 Real Estate ...................................................... 11
2.08 Retirement and Pension Plans ................................ 13
2.09 Bank Accounts, Stock and Life Insurance ................... 14
2.10 Property Tax Provisions ....................................... 14
SECTION III DISTRIBUTION OF DEBTS.............................................. 15
3.01 Wife's Debts..................................................... 15
3.02 Husband's Debts ................................................ 15
3.03 Marital Debts .................................................... 15
3.04 Indemnification................................................. 16
SECTION IV COUNSEL FEES.......................................................... 17
4.01 Waiver of Counsel Fees ........................................ 17
4.02 Alimony, APL and Spousal Support........................... 17
4.03 Health Insurance ............................................... 17
SECTION V CLOSING PROVISIONS AND EXECUTION ............................ 18
5.01 Counterparts ................................................... 18
5.02 Facsimile Signature ............................................ 18
5.03 Binding Effect .................................................. 18
11
INTRODUCTION
THIS AGREEMENT made this /J'fhday of %.Ul:Jt , 2005, by and between MICHELLE A.
HAWK, (Wife") of 1049 Powells Valley Road, HalIfax, PA, and CHRISTOPHER M. UMBERGER,
("Husband") of P.O. Box 473, New Kingstown, PA.
WITNESETH:
WHEREAS, the parties hereto are husband and wife, having been married on December
21, 2002 in Mechanicsburg, Cumberland County, PA, and separated on June 11, 2004.
WHEREAS, diverse and unhappy differences, disputes and difficulties have arisen
between the parties and it is the intention of Husband and Wife to live separate and apart for
the rest of their natural lives, and the parties hereto are desirous of settling fully and finally
their respective financial and property rights and obligations as between each other including,
without limitation by specification: the settling of all matters between them relating to the
ownership and equitable distribution of real and personal property; the settling of all matters
between them relating to the past, present and future support, alimony and/or maintenance
of Wife by Husband or of Husband by Wife; and in general, the settling of any and all claims and
possible claims by one against the other or against their respective estates.
NOW, THEREFORE, in consideration of the premises and mutual promises, covenants and
undertakings hereinafter set forth and for other good and valuable consideration, receipt of
which is hereby acknowledged by each of the parties hereto, Wife and Husband, each intending
to be legally bound hereby, covenant and agree to the following set forth provisions.
END OF INTRODUCTION
1
SECTION I
GENERAL PROVISIONS
1.01. INCORPORATION OF PREAMBLE
The recitals set forth in the Preamble of this Agreement are incorporated herein and made a
part hereof as if fully set forth in the body of the Agreement.
1.02. DIVORCE DECREE
The parties acknowledge that their marriage is irretrievably broken and that they will secure
a mutual consent no-fault Divorce Decree in the above captioned divorce action docketed to
No. 04-3919 Civil and filed on August 10, 2004. Upon the execution of this Agreement, or as
soon as possible under the terms of said Divorce Code if said documents can not be signed upon
the execution of this Agreement, the parties shall execute and file all documents and papers,
including affidavits of consent, necessary to finalize said divorce.
If either party fails or refuses to finalize said divorce or execute and file the documents
necessary to finalize the divorce, said failure or refusal shall be considered a material breach
of this Agreement and shall entitle the other party at his or her option to terminate this
Agreement, in which event the parties shall be restored to the same legal position each had
been immediately prior to the execution of this Agreement, and either party may then proceed
with the litigation of any claims heretofore raised in this divorce action the same as of this
Agreement has never been executed by the parties.
1.03. INCORPORATION/NON MERGER IN DIVORCE DECREE
The terms of this Agreement shall be incorporated into any Divorce Decree which may be
entered with respect to them. This Agreement shall not, however, merge with the Divorce
Decree, but rather, it shall continue to have independent contractual significance and each
party shall maintain their contractual remedies as well as Court remedies as the result of the
aforesaid incorporation or as otherwise provided by law or statute. Unless otherwise
specifically provided herein, this Agreement shall continue in full force and effect after such
time as a final Decree in Divorce may be entered with respect to the parties.
1.04. DATES
The "date of this Agreement" shall be defined as the date of execution by the party last
executing this Agreement. The transfer of property, funds and/or documents provided for
herein shall only take place on the "distribution date" which shall be defined as the date of this
Agreement unless otherwise specified herein.
2
1.05. VOLUNTARY EXECUTION
Each party acknowledges that this Agreement has been entered into of his or her own volition,
with full knowledge of the facts and full disclosure of their separate and joint estates, and that
each believes this Agreement to be reasonable under the circumstances. Further, Husband
acknowledges that he has been advised of his right to be advised by an attorney of his own
choosing prior to entering into this Agreement and that he voluntarily has decided not to retain
such counsel, and further acknowledges that he accepts said Agreement and that said
acceptance is not based on any advice or representation made by Wife's counsel, Diane G.
Radcliff, Esquire, nor has any such advice and/or representation been given to Husband by said
counsel.
1.06. FINANCIAL DISCLOSURE
The parties confirm that each has relied on the substantial accuracy of the financial disclosure
of the other as an inducement to the execution of this Agreement, and each party
acknowledges that there has been a full and fair disclosure of the parties' marital assets and
debts and the parties' respective incomes, which has been provided to each party.
1.07. DISCLOSURE AND WAIVER
Each party acknowledges that he or she is fully aware of his or her legal rights prior to signing
this Agreement, and that a Court decision concerning the parties' respective rights and
obligations might be different from the provisions of this Agreement. Each party hereby
acknowledges that this Agreement is fair and equitable, that it adequately provides for his or
her needs and is in his or her best interests, and that the Agreement is not the result of any
fraud, duress, or undue influence exercised by either party upon the other or by any other
person or persons upon either party.
Given said understanding and acknowledgment, both parties hereby waive the following
procedural rights:
A. Inventorv: The right to obtain an inventory of all marital and separate property
as defined by the Pennsylvania Divorce Code.
B. Aooraisals: The right to have all such property valued by means of appraisals or
otherwise
C. Income and Exoense Statement: The right to obtain an income and expense
statement of the other party as provided by the Pennsylvania Divorce Code,
except in instances where such an income and expense statement is hereafter
required to be filed in any child support action or any other proceedings pursuant
3
to an order of court.
D. Discoverv: The right to have any discovery as may be permitted by the Rules of
Civil Procedure to assist in the discovery and verification of facts relevant to their
respective rights and obligations, including the right to question the other party
under oath. This waiver shall not apply to discovery arising out of a breach of this
Agreement, out of any child support action, or out of any other proceedings in
which discovery is specifically ordered by the Court.
E. Distribution of Prooertv: The right to have the Court determine which property
is marital and which is non-marital, and equitably distribute between the parties
that property which the Court determines to be marital.
F. Other Rillhts and Remedies: The right to have the Court decide any other rights,
remedies, privileges, or obligations covered by this Agreement, including, but not
limited to, possible claims for divorce, spousal support, alimony, alimony
pendente lite (temporary alimony), counsel fees, costs and expenses.
1.08. BANKRUPTCY
The parties hereby agree that the provisions of this Agreement shall not be dischargeable in
bankruptcy and expressly agree to reaffirm any and all obligations contained herein. In the
event a party files such bankruptcy and pursuant thereto obtains a discharge of any obligations
assumed hereunder, the other party shall have the right to declare this Agreement to be null
and void and to terminate this Agreement in which event the division of the parties' marital
assets and all other rights determined by this Agreement shall be subject to Court
determination the same as if this Agreement had never been executed by the parties.
1.09. PERSONAL RIGHTS
Husband and Wife may and shall, at all times hereafter, live separate and apart. They shall be
free from any control, restraint, interference or authority, direct or indirect, by the other in
all respects as fully as if they were unmarried. They may reside at such place or places as they
may select. Each may, for his or her separate use or benefit, conduct, carryon and engage in
any business, occupation, profession or employment which to him or her may seem advisable.
Husband and Wife shall not molest, harass, disturb or malign each other or the respective
families of each other nor compel or attempt to compel the other to cohabit or dwell by any
means or in any manner whatsoever with him or her.
1 .10. MUTUAL RELEASES
Except as otherwise expressly provided in this Agreement, Husband and Wife each do hereby
4
mutually remise, release, quitclaim and forever discharge the other and the estate of such
other, for all time to come, and for all purposes whatsoever, of and from the following:
A. Claims AlZainst ProDertv or Estate: Any and all right, title, interest and/or claims
in or against the other party, the property (including income and gain from
property hereafter accruing) of the other or against the estate of such other, of
whatever nature and wheresoever situate, which he or she now has or at any time
hereafter may have against such other party, the estate of such other party or the
property of the other party or any part thereof, whether arising out of any former
acts, contracts, engagements or liabilities of such other.
B. Dower. Curtesy. Widows RilZhts: Any and all rights and claims of dower or
curtesy, or claims in the nature of dower or curtesy or widow's or widower's rights,
family exemption or similar allowance, or under the intestate laws, or the right
to take against the spouse's will;
C. Life Time Conveyances: The right to treat a lifetime conveyance by the other as
testamentary, or all other rights of a surviving spouse to participate in a deceased
spouse's estate, whether arising under the laws of (i) the Commonwealth of
Pennsylvania, (ii) State, Commonwealth or Territory of the United States, or (iii)
any other country;
D. Marital RilZhts: Any rights which either party may have or at any time hereafter
have for past, present or future support or maintenance, alimony, alimony
pendente lite, counsel fees, equitable distribution, costs or expenses, whether
arising as a result of the marital relation or otherwise.
E. Breach ExceDtion: The foregoing shall not apply to all rights and agreements and
obligations of whatsoever nature arising or which may arise under this Agreement
or for the breach of any provision thereof. It is the intention of Husband and Wife
to give to each other by the execution of this Agreement a full, complete and
general release with respect to any and all property of any kind or nature, real,
personal or mixed, which the other now owns or may hereafter acquire, except
and only except, all rights and agreements and obligations of whatsoever nature
arising or which may arise under this Agreement or for the breach of any
provisions thereof.
1.11. INCOME TAX MATTERS
With respect to income tax matters regarding the parties the following shall apply:
5
A. Prior Returns: The parties have heretofore filed joint federal and state returns.
Both parties agree that in the event any deficiency in federal, state or local
income tax is proposed, or any assessment of any such tax is made against either
of them, each will indemnify and hold harmless the other from and against any
loss or liability for any such tax deficiency or assessment therewith. Such tax,
interest, penalty or expense shall be paid solely and entirely by the individual who
is finally determined to be the cause of the misrepresentations or failure to
disclose the nature and extent of his or her separate income on the aforesaid
joint returns.
B. Preservation of Records: Each party will keep and preserve for a period of three
(3) years from the date of their divorce all financial records relating to the
marital estate, and each party will allow the other party access to those records
as may be reasonably necessary from time to time.
C. 2003 Income Tax Refund: The parties anticipate receipt of a income tax refund
in the estimated amount of 2,600.00 which was to be divided equally. However,
since Wife advanced $1,000.00 to Husband, Wife shall receive $2,300.00 from that
refund and Husband shall receive $300.00. If the refund is other than $2,600.00,
Wife shall receive half of that refund plus $1,000.00 and Husband shall receive
half of that refund minus $1,000.00.
D. 2004 Income Tax Returns: If the parties do not file a joint tax return for 2004,
the Husband shall claim all of the interest for the first mortgage against marital
Home on his applicable income tax returns and Wife shall claim all of the interest
for the home equity loan on her applicable income tax returns. The parties shall
share all appropriate tax information and documents to carry forth the intent of
this Agreement.
1.12. EFFECT OF RECONCILIATION
This Agreement shall remain in full force and effect even if the parties reconcile, cohabit as
Husband and Wife or otherwise, or attempt a reconciliation. This Agreement shall continue in
full force and effect and there shall be no modification or waiver of any of the terms hereof
unless the parties, in writing, signed by both parties, execute a statement declaring this
Agreement or any term of this Agreement to be null and void.
1.13. MUTUAL COOPERATION
Each party shall, at any time and from time to time hereafter, and within at least twenty (20)
days after demand therefor, take any and all steps and execute, acknowledge and deliver to
6
the other party, any and all further instruments and/or documents that the other party may
reasonably require for the purpose of giving full force and effect to the provisions of this
Agreement.
1.14. WAIVER OR MODIFICATION TO BE IN WRITING
No modification or waiver of any of the terms hereof shall be valid unless in writing and signed
by both parties.
1.15. 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.
1.16. 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 in no way affect the right of such
party hereafter to enforce the same in the future, nor shall it be construed as a waiver of strict
performance of any other obligations herein, nor shall it be construed as a waiver of any
subsequent default of the same or similar nature.
1.17. BREACH
If for any reason either Husband or Wife fails to perform his or her obligations owed to or for
the benefit of the other party and/or otherwise breaches the terms of this Agreement, then the
other party shall have the foLlowing rights and remedies, all of which shall be deemed to be
cumulative and not in the alternative, unless said cumulative effect would have an inconsistent
result or would result in a windfall of the other party:
A. Soecific Performance: The right to specific performance of the terms of this
Agreement, in which event the non-breaching party shall be reimbursed for all
reasonable attorney's fees and costs incurred as the result of said breach and in
bringing the action for specific performance.
B. Damalles: The right to damages arising out of breach of the terms of this
Agreement, which damages shall include reimbursement of all reasonable
attorney's fees and costs incurred as the resuLt of the breach and in bringing the
damage action.
C. Divorce Code Remedies: The right to aLL remedies set forth in Section 3502(e)
of the Pennsylvania Divorce Code, 23 PA. C.S.A. 3502(e), and any additional rights
7
and remedies that may hereafter be enacted by virtue of the amendment of said
statute or replacement thereof by any other similar laws.
D. Other Remedies: Any other remedies provided for in law or in equity.
E. Considerations for Reasonable Attornevs Fees: Any award of "reasonable
attorneys fees" as used in this paragraph shall be based on consideration of (1)
the hourly rate charged; (2) the services rendered; and (3) the necessity of the
services rendered. Determination of reasonableness shall not take into
consideration the amount or nature of the obligation sought to be enforced or any
possibility of settlement for less than the obligation sought to be enforced by the
non-breaching party.
1.18. MANNER OF GIVING NOTICE
Any notice required by this Agreement shall be sent to a party at the address listed on page 1
above, or such other address as that party may from time to time designate.
1.19 . INTEGRATION
This Agreement constitutes the entire understanding of the parties and supersedes any and all
prior agreements and negotiations between them. There are no representations or warranties
other than those expressly set forth herein.
1.20. LAW OF PENNSYLVANIA APPLICABLE
This Agreement shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania.
1.21. HEADINGS NOT PART OF AGREEMENT
Any headings preceding the text of the several paragraphs and subparagraphs hereof, are
inserted solely for convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
END OF SECTION I - GENERAL PROVISIONS
8
SECTION II
DISTRIBUTION OF PROPERTY
2.01. FINAL EQUITABLE DISTRIBUTION OF PROPERTY
The parties agree that the division of all property and debts set forth in this Agreement is
equitable and in the event an action in divorce has been or is hereafter commenced, both
parties waive and relinquish the right to divide and distribute their assets and debts in any
manner not consistent with the terms set forth herein and further waive and relinquish the right
to have the Court equitably divide and distribute their marital assets and debts. It is further
the intent, understanding and agreement of the parties that this Agreement is a full, final,
complete and equitable property division.
2.02. AFTER-ACQUIRED PROPERTY
Each of the parties shall hereafter own and enjoy, independently of any claim or right of the
other, all property, tangibLe or intangible, real, personal or mixed, acquired by him or her,
since June 11, 2004, the date of the parties' marital separation, with full power in him or her
to dispose of the same as fully and effectively, in all respects and for all purposes, as though
he or she were unmarried and each party hereby waives, releases, renounces and forever
abandons any right, title, interest and claim in and to said after acquired property of the other
party pursuant to the terms of this Paragraph.
2.03. WAIVER OF INHERITANCE
Each of the parties hereto does specifically waive, release, renounce and forever abandon any
right, title, interest and claim, if any, either party may have in and to any inheritance of any
kind or nature whatsoever previously, or in the future, received by the other party.
2.04. AS IS CONDITION
Except as otherwise specifically herein provided, and with respect to the transfer of any
tangible assets provided for in this Marital Agreement, the parties acknowledge that he or she
have had the opportunity to inspect and view the assets that he or she is to receive as his or
her sole and separate property and he or she is fully aware of the condition of such tangible
asset and is receiving those assets in "as is" physical condition, without warranty or
representation by or from the other party.
2.05. PERSONAL PROPERTY
With respect to the tangible personal property of the parties including, but without limitation
with specific reference to, jewelry, clothes, furniture, furnishings, rugs, carpets, household
equipment and appliances, tools, pictures, books, works of art and other personal property
9
("the Personal Property"), the parties agree as follows:
A. Division: Husband and Wife do hereby acknowledge that they have previously
divided the Personal Property. Hereafter Wife agrees that all of the Personal
Property in the possession of Husband shall be the sole and separate property of
Husband; and Husband agrees that all of the Personal Property in the possession
of Wife shall be the sole and separate property of Wife.
B. Waiver: The parties do hereby specifically waive, release, renounce and forever
abandon whatever claims, if any, he or she may have with respect to the Personal
Property which shall become the sole and separate property of the other.
2.06. VEHICLES. BOATS AND THE LIKE
With respect to the vehicles, boats, snowmobiles, motorcycles and the Like owned by one or
both of the parties, or the trade in value thereof, ("the Vehicles") if the Vehicles have been
sold or traded in prior to the date of this Agreement, the parties agree as follows:
A. Wife's Vehicle(s): The 2000 Ford Expedition shall be the sole and separate
property of Wife.
B. Husband's Vehicle(s): The 1994 Ford Thunderbird shall be the sole and separate
property of Husband.
C. Identification: Identification of a Vehicle herein shall include not only the
Vehicle, but also the sale or trade-in value thereof if it had been sold or traded
in prior to the date of this Agreement.
D. Transfer of Titles: The titles to the Vehicles shall be executed by the parties, if
appropriate, for effectuating transfer as herein prOVided on the date of execution
of this Agreement and said executed titles shall be delivered to the proper party
on the distribution date.
E. Title and Power of Attorney: For purposes of this Paragraph the term "title" shall
be deemed to include "power of attorney" if the title to the Vehicle is unavailable
due to financing arrangements or otherwise.
F. Liens: In the event any Vehicle is subject to a lien or encumbrance the party
receiving the Vehicle as his or her property shall take it subject to said lien
and/or encumbrance and shall be solely responsible therefor and said party
10
further agrees to indemnify, protect and save the other party harmless from said
lien or encumbrance. In the event that lien is for a loan for which the parties are
jointly liable, that party shall refinance the same within sixty (60) days of the
date of this Agreement so as to release the other party from any and all liability
thereunder.
G. Waiver: Each of the parties hereto does specificaLly waive, release, renounce and
forever abandon whatever right, title and interest they may have in the Vehicles
that shall become the sole and separate property of the other party pursuant to
the terms of this Paragraph.
2.07. REAL ESTATE
The parties are the owners of a certain tract of improved real estate known and numbered as
12 West Main Street, New Kingstown, PA, heretofore utilized as the parties' marital home ("the
Marital Home"). The Marital Home is encumbered with a first mortgage owed to Wells Fargo,
(the" WF Mortgage") and a home equity loan second mortgage owed to EMC (the HE Loan").
With respect to the Marital Home, the WF Mortgage and the HE Loan the parties agree as
follows:
A. Convevance: Wife shall make, execute and deliver all documents in the usual
form conveying, transferring and granting to Husband all of Wife's right, title and
interest in and to the Marital Home, and specifically waives, releases, renounces
and forever abandons all's right, title and interest therein. The deed of
conveyance therefor shall be executed by at the signing of this Agreement and
held in escrow by's Wife's attorney's pending the refinance or sale as set forth in
subparagraph below, at which time the deed shall be delivered to Husband to
record.
B. Liens. Encumbrances and Exoenses: The said conveyance shall be subject to all
liens and encumbrances including, but not limited to, the lien of the WF
Mortgage, HE Loan (until paid off by Wife) , real estate taxes and any other
municipal liens. The conveyance shall further be under and subject to any
covenants and restrictions of record. Husband shall hereinafter be solely
responsible for the payment of the WF Mortgage, real estate taxes, other
municipal liens and any and all other expenses associated with the MaritaL Home,
whether incurred in the past, present or future, and shall indemnify, protect and
save harmless therefrom. As long as Wife remains liable under the WF Mortgage,
Husband shall supply Wife with proof of the payment of the taxes and insurance
for the property within sixty (60) days of the face date said taxers and insurance
11
are due and payable.
C. Refinance: Husband shall apply for the refinance the WF Mortgage within ten (10)
business days of the date Wife pays the amounts she is to required to pay on
Husband's credit cards and the HE Loan as hereafter provided and shall complete
the same within sixth (60) days thereafter. The costs of refinancing shall be paid
by Husband.
D. Sale upon Failure to Refinance: If within three (3) years of the date of this
Agreement Husband is unable to secure the refinancing and pay of the WF
Mortgage and the release of liability thereunder for Wife, then the Marital Home
shall be listed for sale with a qualified real estate agent and sold at the best price
obtainable, the parties, absent mutual agreement being required to accept and
follow all reasonable advise made by the real estate agent as to listing and sales
price and offers. At settlement on said sale the net proceeds after payment of
all normal and reasonable settlement costs and payment of all existing liens,
mortgages and encumbrances, shall be paid to Husband as Husband's sole and
separate property. If repairs are required to make the property saleable, those
repairs shall be made by Husband at his sole costs and expense. If at the time of
settlement, it appears that the proceeds to be derived from the sale will be less
than the balance owed on the WF Mortgage and the closing costs so that a deficit
exists at the time of sale, Husband shall be required to pay that deficit in order
to complete settlement on the sale thereof.
E. Sale upon Failure to Pay MortllalJe: If Husband fails to timely pay three (3)
mortgage payments in any twelve (12) month period or is otherwise declared to
be in default by the WF Mortgage, which default is not cured within the applicable
cure period provided in the mortgage, then within five business days of the date
of the occurrence of any of the preceding events the Marital Home shall be listed
for sale with a qualified real estate agent and sold at the best price obtainable,
the parties, absent mutual agreement being required to accept and follow all
reasonable advise made by the real estate agent as to listing and sales price and
offers. At settlement on said sale the net proceeds after payment of all normal
and reasonable settlement costs and payment of all existing liens, mortgages and
encumbrances, shall be paid to Husband as Husband's sole and separate property.
If repairs are required to make the property saleable, those repairs shall be made
by Husband at his sole costs and expense. If at the time of settlement, it appears
that the proceeds to be derived from the saLe will be Less than the balance owed
on the WF Mortgage and the closing costs so that a deficit exists at the time of
12
sale, Husband shall be required to pay that deficit in order to complete
settlement on the sale thereof.
F. Taxes upon Sale: Further in the event of sale, Husband shall be solely responsible
for the timely and prompt reporting and payment of any and all taxes, including
capital gains taxes or the equivalent, and shall report the same on Husband's
applicable income tax returns and shall indemnify, protect and hold harmless
therefrom.
2.08. RETIREMENT AND PENSION PLANS
Except as hereafter provided, each of the parties does specifically waive, release, renounce
and forever abandon all of their right, title, interest or claim, whatever it may be, in any
Pension Plan, Retirement Plan, IRA Account, Profit Sharing Plan, 401-K Plan, Keogh Plan, Stock
Plan, Tax Deferred Savings Plan, any employee benefit plan and/or other retirement type plans
of the other party, whether acquired through said party's employment or otherwise, ("the
Retirement Plans"). Hereafter the Retirement Plans shall become the sole and separate
property of the party in whose name or through whose employment said plan or account is held
or carried. If either party withdraws any sums from the Retirement Plans distributed to him
or her pursuant to the terms of this Paragraph, that party shall be solely liable for any and all
taxes and penalties resulting from that withdrawal.
The foregoing notwithstanding, Wife shall receive $80,000.00 from Husband's Lowes 401 K plan
under and subject to the following terms and conditions:
A. The $80,000.00 shall be paid to Wife pursuant to a QDRO so that the $80,000.00
is paid to her as a tax free rollover of retirement benefits between spouses.
Thereafter, Wife shall withdrawal said sums and shall be responsible for the
payment of all taxes and penalties resulting therefrom, subject nonetheless to the
following terms and conditions.
B. Within five (5) business days of Wife's receipt of the $80,000.00 in the form of
spendable cash, Wife shall apply $37,000.00 or so much as is necessary to payoff
the Home Equity Loan.
C. Within five (5) business days of Wife's receipt of the $80,000.00 in the form of
spendable cash, Wife shall apply $2,000.00 towards Husband's credit cards.
D. $6,000.00 shall be retained by Wife for her equity in the Marital Home.
E. $6,000.00 shall be retained by Wife to account for the portion of Husband's debts
13
being assumed by Wife as part of her credit card balances.
F. The remaining balance or $29,000.00 shall be retained by Wife and used by her
to pay the taxes and penalties resulting from the withdrawal of the $80,000.00.
G. If the balance in Husband's Lowes 401K PLan is insufficient to pay Wife the
$80,000.00, then Wife shall be paid the total balance in that account. In such
event, the parties shall be affected equally by the difference between the
$80,000.00 minus the actual amount paid. Because Wife will be receiving the
funds and shall be obligated to make the payments, her obligation to pay on
Husband's credit cards or the home equity loan shall be reduced by Husband's 50%
share of that difference, which shortfall shall then be paid by Husband.
2.09. BANK ACCOUNTS/STOCK/LIFE INSURANCE
The parties acknowledge and agree that they have previously divided to their mutual
satisfaction all of their bank accounts, certificates of deposit, bonds, shares of stock,
investment plans and life insurance cash value, ("the Accounts"). Hereafter Wife agrees that
all the Accounts held in the name of Husband shall become the sole and separate property of
Husband; and Husband agrees that all the Accounts held in the name of Wife shall become the
sole and separate property of Wife. Each of the parties does specificaLly waive, reLease,
renounce and forever abandon whatever right, title, interest or claim, he or she may have in
the Accounts that are to become the sole and separate property of the other pursuant to the
terms hereof.
2.10. TAX PROVISIONS
The parties believe and agree that the division of property made to be made pursuant to the
terms of 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 or with respect to any other
issue which is inconsistent with the terms of this Paragraph on his or her applicable federal or
state income tax returns.
END OF SECTION \I - DISTRIBUTION OF PROPERTY
14
SECTION III
DISTRIBUTION OF DEBTS
3.01. WIFE'S DEBTS
Wife represents and warrants to Husband that since the parties' marital separation she has not
contracted or incurred any debt or liability for which Husband or his estate might be
responsible. Wife further represents and warrants to Husband that she will not contract or
incur any debt or liability after the execution of this Agreement for which Husband or his estate
might be responsible. Wife shall indemnify and save Husband harmless from any and all claims
or demands made against him by reason of debts or obligations incurred by her.
3.02. HUSBAND'S DEBTS
Husband represents and warrants to Wife that since the parties' marital separation he has not
contracted or incurred any debt or liability for which Wife or her estate might be responsible.
Husband further represents and warrants to Wife that he will not contract or incur any debt or
liability after the execution of this Agreement for which Wife or her estate might be
responsible. Husband shall indemnify and save Wife harmless from any and all claims or
demands made against her by reason of debts or obligations incurred by him.
3.03. MARITAL DEBTS
During the course of the marriage, Husband and Wife have incurred certain bills and obligations
and have amassed a variety of debts, ("the Marital Debts"), and it is hereby agreed, without
ascertaining for what purpose and to whose use each of the Marital Debts were incurred, the
parties agree as follows:
A. General Provision: Any debt herein described shall be deemed to include the
current balance owed on the debt. Unless otherwise herein specifically provided,
there shall be no adjustment for the payment of any portion of the Marital Debts
that a party may have made prior to the execution of this Marital Agreement,
whether or not that debt is specifically referenced in this Paragraph.
B. Wife's Debts: Except and to the extent not otherwise provided for in this
Agreement, Wife shall be solely responsible for any and all other debts, liabilities,
obligations, loans, credit card accounts, and the like incurred in Wife's sole name.
B. Husband's Debts: Except and to the extent not otherwise provided for in this
Agreement, Husband shall be solely responsible for any and all other debts,
liabilities, obligations, loans, credit card accounts, and the like incurred in
15
Husband's sole name.
C. Cancellation of Joint Debts: Any joint debt shall be canceled so that neither
party can make any further charges thereunder, and if said charges are made in
violation of this Agreement, then the party incurring said charge shall
immediately repay the same.
D. Non-Disclosed Liabilitv: Any liability not disclosed in this Agreement shall be the
sole responsibility of the party who has incurred or may hereafter incur it, and the
party incurring or having incurred said debt shall pay it as it becomes due and
payable.
E. No Further Joint Debt: From the date of this Agreement, each party shall only
use those credit accounts or incur such further obligations for which that party is
individually and solely liable and the parties shall cooperate in closing any
remaining accounts which provide for joint liability.
3.04. INDEMNIFICATION
Any party assuming an obligation pursuant to the terms of this Agreement shall indemnify,
protect and hold the other party harmless from and against all any and all liability thereunder,
including, but not limited to, any attorney's fees and costs incurred by the other party as the
result of defending against the obligation and/or enforcing the provisions of this
indemnification.
END OF SECTION III - DISTRIBUTION OF DEBTS
16
SECTION IV
COUNSEL FEES, ALIMONY,
APL, & SPOUSAL SUPPORT
4.01. WAIVER OF COUNSEL FEES
The parties hereby waive any right and/or claim each may have, both now and in the future,
against the other for counsel fees, costs and expenses.
4.02. ALIMONY. APL AND SPOUSAL SUPPORT
The parties hereby waive any right and/or claim they may have, both now and in the future,
against the other for alimony, alimony pendente lite, spousaL support and maintenance.
4.03. HEALTH INSURANCE
The following shall apply regarding health insurance:
A. Health Insurance for Soouse: Any party carrying health insurance on the other
party shall continue to provide health insurance coverage on the other party until
the date of the entry of the Divorce Decree. The party for whom that health
insurance is provided shall be entitled to elect Cobra coverage under the other
party's employment policy in accordance with governmental rules and regulations
provided that he or she shall be solely be responsible for the payment of the costs
therefor.
B. Health Insurance Documentation: Any party having the insurance coverage on
the other party or the pursuant to the terms of this Paragraph shall be required
to provide the other party with all documentation pertaining to the insurance
including, but not limited to, medical insurance cards, benefit booklets, claim
submission forms and all statements pertaining to the determination of insurance
coverage as to each claim made thereunder.
END OF SECTION IV - COUNSEL FEES, ALIMONY, APL & SPOUSAL SUPPORT
17
SECTION V
CLOSING PROVISIONS AND EXECUTION
5.01. COUNTERPARTS
This Agreement may be executed in various counterparts, each of which shall be deemed to be
an original, but all of which shall constitute one and the same agreement.
5.02. FACSIMILE SIGNATURE
Each party agrees to accept and be bound by facsimile signatures hereto.
5.03. BINDING EFFECT
BY SIGNING THIS AGREEMENT, EACH PARTY ACKNOWLEDGES HAVING READ AND UNDERSTOOD
THE ENTIRE AGREEMENT, AND EACH PARTY ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT SHALL BE AS BINDING UPON THE PARTIES AS IF THEY WERE ORDERED BY THE COURT
AFTER A FULL HEARING.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have signed
sealed and acknowledged this Agreement the day and year below written, which Agreement has
been executed in various counterparts, each of which shall constitute an original.
WITNESS:
~1h-1~
CHRISTOPHER M. UMBERGER
Date: :sf-S.OS
vd-eal-1UL K ~
MICHELLE A. HAWK
Date: 8 .;/- d)
18
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF (\J\X\\:)(J \U(\O
On this the .w day of \\\ \G \ \\-\- , 2005, before me the undersigned officer,
personally appeared, CHRISTOPHER M. UMBERGER, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within Agreement, and acknowledged that he
executed the same for the purposes therein contained.
SS.
IN WITNESS WHEREOF, I hereunto set my hand and notarial seal.
COMMONWEALTH or PENNSYLVANIA
Notarial Seal .
JenniferN. Grove, Notary PlObtlC
Silver SpriJlgTwp., cumbejrlanZd ~2"o'O~
My CommIssIOn Expues an. .
Member, PennsyNanl8 Association nf Notaries
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NOTARY P L1C
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ~../a~U
SS.
On this the /f/IL day of 0r:.aa , 2005, before me the undersigned officer,
personally appeared, MICHELLE A. HAWK, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within Agreement, and acknowledged that she
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notariaL seal.
,ddJ~oP ~1
NOTARY PUBLIC
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Deborah L Donley. Notary Public
Camp Hill Boro. Cumbe!1and ~
My Commission Expires Sepl23. 2001
Member, Pennsylvania AssocIation Of Notaries
19
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHELLE A. HAWK,
Plaintiff
NO. 04-3919 CIVIL
V.
CIVIL ACTION - LAW
CHRISTOPHER M. UMBERGER,
Defendant
IN DIVORCE
PRAECIPE OF 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 Section 3301 (c) of the Divorce Code.
2. DATE OF FILING AND MANNER OF SERVICE OF THE COMPLAINT:
a. Date of mini! of Comolaint: August 10, 2004
b. Manner of service of Comolaint: Defendant's Acceptance of Service
c. Date of Service of Comolaint: August 12, 2004
3. DATE OF EXECUTION OF THE AFFIDAVIT OF CONSENT REQUIRED BY SECTION 3301 (C) OF THE DIVORCE CODE:
a. Plaintiff: August 11, 2005
b. Defendant: August 5, 2005
OR
DATE OF EXECUTION OFTHE PLAINTIFF'S AFFIDAVIT REQUIRED BY SECTION 3301 (D) OFTHE DIVORCE CODE AND
DATE OF SERVICE OF THE PLAINTIFF'S 3301 (D) AFFIDAVIT UPON THE DEFENDANT:
a. Date of Execution: N/ A
b. Date of Filing: N/A
c, Date of Service: N / A
4. RELATED CLAIMS PENDING:
No issues are pending. All issues have been resolved pursuant to the parties' Marital Agreement dated August 11,
2005, which Agreement is to be incorporated into but not merged with the Divorce Decree.
5. DATE AND MANNER OF SERVICE OF THE NOTICE OF INTENTION TO FILE PRAECIPE TO TRANSMIT RECORD, A COPY
OF WHICH IS ATTACHED, IF THE DECREE IS TO BE ENTERED UNDER SECTION 3301(D)(1)(I) OF THE DIVORCE
CODE:
a. Date of Service: N/ A
b. Manner of Service: N/A
OR
DATE WAIVER OF NOTICE IN SECTION 3301 (C) DIVORCE WAS FILED WITH THE PROTHONOTARY:
a. Plaintiff's Waiver: August 12, 2005
b. Defendant's Waiver: August 12, 2005
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IN THE COURT OF COMMON PLEAS
OFCUMBERLANDCOUNTY
STATE OF
PENNA.
MICHELLE A, HAWK,
Plaintiff
No. 04-3919 CIVIL TERM
VERSUS
CHRISTOPHER M. UMBERGER,
Defendant
DECREE IN
DIVORCE
AND NOW,
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, IT IS ORDERED AND
,2005
DECREED THAT
MICHELLE A. HAWK
, PLAINTIFF.
AND
CHRISTOPHER M. UMBERGER
. DEFENDANT,
ARE DIVORCED FROM THE BONDS OF MATRIMONY.
THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE
BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT
YET BEEN ENTERED;
No issues are outstanding. All issues have been resolvea and settled by
the Parties' Marital Agreement dated August 11, 2005, filed of record and
incorporated into, but not merged with, this Decree.
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PROTHONOTARY
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Hawk v. Umberger
Lowe's 401(k) Plan
Qualified Domestic Relations Order
~
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
RECEIVED ~=p C2 ~ 'l'\
r
MICHELLE A. HAWK,
Plaintiff
NO. 04-3919 CIVIL
v,
CIVIL ACTION - LAW
CHRISTOPHER M. UMBERGER,
Defendant
IN DIVORCE.
QUALIFIED DOMESTIC RELATIONS ORDER
WHEREAS, Michelle A. Hawk (Plaintiff) and Christopher M. Umberger (Defendant),
were married in Mechanicsburg, Pennsylvania, on December 21, 2002;
WHEREAS, the parties have separated and have obtained a decree of divorce;
WHEREAS, pursuant to the dissolution of marriage, the Plan Participant and the
Alternate Payee have entered into a Consent Order which provides for a division of the
marital estate and all other property, real and personal, tangible and intangible,
including their respective interest in the Lowe's 401 (k) Plan (hereinafter the "Plan");
WHEREAS, the Plan Participant and the Alternate Payee wish to settle all issues
relating to their interests in the Plan;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises hereunder specified, the parties do agree, and the Court does order, as follows:
SECTION 1. The parties and the Court intend this Order to constitute a "qualified
domestic relations order" (a "QDRO") as defined in Section 414(p)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), and Section Z06(d)(3)(B) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
SECTION 2. This Order applies to the Lowe's 40'1 (k) Plan.
Page 1 of 6
Alh)nc'.~:
TVifl::J
62 : I lid 9- d3S SOOZ
AUV.lOi'iJi-LLUi:id 3H1 .:10 .
38U:IC>-{J3ll:l
Hawk v. Umberger
Lowe's 401(k) Plan
Qualified Domestic Relations Order
SECTION 3. Michelle A. Hawk is hereby designated as the "Alternate Payee" as
that term is defined in Code Section 414(p)(8) and ERISA Section 206(d)(3)(K).
Christopher M. Umberger is hereby designated as the "Plan Participant."
The names, Social Security numbers, dates of birth, and mailing address of the
Plan Participant and the Alternate Payee are:
The Plan Particioant:
Name:
SSN:
DOB:
Mailing Address:
The Alternate Payee:
Name:
SSN:
DOB:
Mailing Address:
Christopher M. Umberger
204-48-1556
05/17/1974
P.O. Box 473, New Kingstown, PA 17077
Michelle A. Hawk
175-48-5168
12/22/1971
1049 Powell's Valley Road, Halifax, PA 17032
The Alternate Payee and the Plan Participant shall. keep the Plan Administrator
informed of their current addresses. Any notice of a change of address should be made
in writing and mailed to the Plan Administrator at the following address:
Plan Administrator (HR)
Lowe's 401 (k) Plan
Attn: PauLette Brooks
Lowe's Companies, Inc.
P.O. Box 1111
North Wilkesboro, NC 28656
(or such other address as the Plan Administrator may specify in a written notice to the
Alternate Payee and the Plan Participant.
SECTION 4. From the benefits which otherwise would be payable to the Plan
Participant under the Plan, the Plan Participant assigns to the Alternate Payee and the
Alternate Payee shall receive from the Plan a benefit equal to $80,000.00 of the Plan
Participant's account baLance under the Plan, not adjusted for earningsllosses from the
Page 2 of 6
"
Hawk v. Umberger
Lowe's 401(k) Plan
Qualified Domestic Relations Order
date of this Order to the date of transfer to the ALternate Payee provided, however, that
in no event shall the Alternate Payee be entitled to an amount under this Order that
exceeds the value of the Plan Participant's account in the Plan as of the date of transfer
to the Alternate Payee. If the PLan has a value of less than $80,000.00 then the Plan
Participant assigns to the Alternate Payee and the Alternate Payee shall receive from the
Plan a benefit equal to 100% of the Plan Participant's accclunt balance
This dollar amount shall be taken pro-rata from the PL.an Participant's subaccounts
in the Plan, and pro-rata from the various investment funds in which each such
subaccount is invested.
SECTION 5. The Plan Administrator will establish a separate account for the
Alternate Payee under the Plan. The Alternate Payee will direct the Plan Administrator
as to any disbursements from that account.
The Plan Participant will retain the remainder of hisJher account in the Plan, if
any, free and clear of any further claim by the Alternate Payee.
SECTION 6. The Plan Participant and the Alternate Payee are ORDERED to report
any distributions that either of them may receive on their respective federal income tax
returns for the year received. The Plan Administrator or Trustee, as the case may be,
is authorized to issue a Form 1099, and Form W-2P, or other appropriate Internal
Revenue Service form, upon any payment or distribution made to either party.
SECTION 7. If the Alternate Payee dies before the total amount of her benefits
under the Plan has been distributed to her, any remaining amount will be paid to her
Estate and heirs. In this regard, the Alternate Payee may complete a Beneficiary
Designation Form from the Plan Administrator and may request a new form at any time
in the future if a change in beneficiary is desired.
SECTION 8. This Order does not require: (i) the Plan to provide any type or form
of benefit, or any option, not otherwise provided under thE! Plan, except as permitted
by Code Section 414(p) and ERISA Section 206(d); (ii) the Plan to provide increased
benefits; or (iii) the payment of any benefits to the Alternate Payee which are required
to be paid to another alternate payee under another order previously determined to be
a QDRO.
SECTION 9. This Order relates to the period that starts with the execution of this
Order by the Court, and ends when all benefits assigned to the Alternate Payee
hereunder have been distributed, in full, from the Plan, in conformity with the provisions
Page 3 of 6
,
Hawk v. Umberger
Lowe's 401(k) Plan
Qualified Domestic Relations Order
hereof. This Order has been issued pursuant to state domestic relations law to enforce
marital property rights of the Alternate Payee who is or was the spouse of the Plan
Participant.
SECTION 10. Since it is intended that this Order will qualify as a QDRO, the
provisions hereof shall be administered and interpreted in conformity with ERISA and the
Code. The Court shall retain jurisdiction to amend this Order for purposes of establishing
or maintaining its qualifications as a QDRO under ERISA and the Code, and either party
may apply to the Court for such an amendment.
SECTION 11.
(A) In case of a conflict between terms of the QDRO and the terms of the Plan,
the terms of the Plan shall prevail.
(B) The Alternate Payee shall be a "beneficiary" of the Plan for purposes of
ERISA.
(C) All notices to be given or documents to be sent to the Plan Administrator
shall be addressed in accordance with Section 3 and shall not be deemed
given to the PLan unless sent certified mail, rE~turn receipt requested.
(D) The parties shall hold the Plan (and its sponsor and fiduciaries) harmless
from any liabilities which arise from the QDRO, and the use of this form
Order, including all reasonable attorney's fee's which may be incurred in
connection with any claims which are asserted because the Plan honors this
QDRO.
(E) The Plan and its sponsor and fiduciaries shall not be responsible for any
attorney's fees incurred by the Plan Participant or the Alternate Payee in
connection with obtaining or enforcing this Q[)RO.
SECTION 12. The Plan Participant shall be obligated to furnish a filed copy of this
Order with original stamp and seal to the Plan Administrator. The Plan Participant shall
inform the Plan Administrator of the parties' intention that this Order constitutes a
"qualified domestic relations order." If, within thirty (30) days of the Court's entering
of this Order, the Alternate Payee does not receive notice {at the address specified in
Section 3) from the Plan Administrator that the Plan Administrator has received a copy
of this Order, the Alternate Payee, as his/her discretion, may fulfill the Plan
Participant's notification obligation set forth in this Section 12.
Page 4 of 6
Hawk v. Umberger
Lowe's 401(k) Plan
Qualified Domestic Relations Order
BY THE COURT:
s,.,.r~ " UD-r
,//;1-
J.
Distribution to:
.Jf'torney for Plaintiff: Diane G, Radcliff, Esquire, 3448 Trindle Road, Camp Hill, PA 17011
.,.;Defendant, Pro Se: Christopher M. Umberger, P.O. Box 473, New Kingstown, PA 17077
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Page 5 of 6