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HomeMy WebLinkAbout02-1501ROBERT W. SMITH, Plaintiff VS. LORI A. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2002- l~Oi CIVIL : 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 at the Cumberland County Court House, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, MARITAL 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 ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY 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 Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 ROBERT W. SMITH, Plaintiff VS. LORI A. SMITH, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION- LAW 'NO. 2002- ~,..~0I CIVIL : IN DIVORCE COMPLAINT UNDER SECTIONS 3301(C)AND 3301(D) OF THE DIVORCE CODE 1. Plaintiff is Robert W. Smith, an adult individual with a current mailing address of P.O. Box 243, Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant is Lori A. Smith, an adult individual who currently resides at 1360 Kiner Boulevard, Carlisle, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth of Pennsylvania for at least six months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were married on June 6, 1987, in Cumberland County, Pennsylvania. COUNT I - DIVORCE 5. Plaintiff hereby incorporates by reference paragraphs 1 through 4 above. 6. There have been no prior actions of divorce or for annulment between the parties as to their current marriage. 7. Neither Plaintiff nor Defendant is in the Armed Forces of the United States. 8. Plaintiff avers that the marriage between the parties is irretrievably broken. 9. The Plaintiff has been advised of the availability of counseling and that he may have the right to request that the court require the parties to participate in counseling. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a decree in divorce. COUNT II-EQUITABLE DISTRIBUTION 10. Plaintiff hereby incorporates by reference paragraphs 1 through 9 above. 11. The parties have acquired real and personal property, as well as marital debt. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter a decree which effects an equitable distribution of marital property. Respectfully submitted, O'BRIEN, BARIC & SCHERER Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. # 28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 rlo.dirlclientslrsmithldivorce.com VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Date: ~;~/¢~,¢,./- 0'2. ROBERT W. SMITH, Plaintiff LORI A. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002 - 1501 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 330'1(c) OF THE DIVORCE CODE 1. A complaint in divorce under Section 3301(c) and Section 3301 (d) of the Divorce Code was filed on March 28, 2002. 2. The marriage of the Plaintiff and Defendanll is irretrievably broken and ninety days have elapsed from the date of the filing of the Complaint. 3. I consent to the entry of a final decree in divorce without notice. 4. I understand that I may lose rights concern!lng alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 5. 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. 6. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: ROBERT W. SMITH, Plaintiff LORI A. SMITH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002- 1501 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE DEFENDANT'S AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE UNDER SECTION 3301fc) OF THE DIVORCE CODI- 1. A complaint in divorce under Section 3301(c) and Section 3301 (d) of the Divorce Code was filed on March 28, 2002. 2. The marriage of the Plaintiff and Defendant is irretrievably broken and ninety days have elapsed from the date of the filing of the, Complaint. 3. I consent to the entry of a final decree in divorce without notice. 4. 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. 5. 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. 6. I have been advised of the availability of marriage counseling and understand that I may request that the court require counseling. I do not request that the court require counseling. 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. Lori A. Smith SEPARATION AND PROPERTY SETTLEMENT AGREEMENT THIS AGREEMENT, made this /~ ~ day of 2004, by and between LORI A. SMITH, of 1360 Kiner Boulevard, Carlisle, Pennsylvania, party of the first part, hereinafter referred to as "WIFE" AND ROBERT W. SMITH, of 307 Raymon Avenue, Boiling Springs, Pennsylvania, party of the second part, hereinafter referred to as "HUSBAND". WlTNESSETH: WHEREAS, HUSBAND and WIFE were man'ied on June 6, 1987, in Carlisle, Pennsylvania; and WHEREAS, HUSBAND and WIFE are residents oft]he Commonwealth of Pennsylvania and have been so for at least the past six months; and WHEREAS, certain differences have arisen between the parties hereto which have made them desirous of living separate and apart from one another; and WHEREAS, HUSBAND and WIFE desire to settle and determine certain of their marital rights and obligations, and make an equitable distribution ofthei[r marital property, waive their rights to alimony and support and any other matters which may be considered under the Divorce Code; and WHEREAS, it is the intention and purpose of this &~eement to set forth the respective rights and duties of the parties while they continue to live apart from each other and to settle all financial and property rights between them; and WHEREAS, the parties hereto have mutually entered into an agreement for the division of theirj ointly owned assets, the provisions for the liabilities they owe, and provisions for the resolution of their mutual differences, after both have had full and ample opportunity to consult with their respective attorneys, if they so desired, and the parties now wish to have that agreement reduced to writing. NOW, THEREFORE, the parties hereto in consideration of the mutually made and to be kept promises set forth hereinafter and for other good and valuable consideration, and intending to be legally bound and to legally bind their heirs, successors, assigns, and personal representatives, do hereby covenant, promise and agree as follows: ARTICLE I SEPARATION AND NON-MOLESTATION AGREEMENT 1.1 It shall be lawful for HUSBAND and WIFE at all times hereafter to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit free from any authority, control, restraint, or interference, direct or indirect, by each other. Each party agrees that he or she will not compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. Each may have for her or his separate use and benefit the right to conduct, carry on or engage in any business, profession or occupation. Neither of the parties shall, in any way whatsoever, interfere with the other's employment or occupation, directly or indirectly. HUSBAND and WIFE shall not molest, harass, disturb, or malign each other or the respective families, employees, or employers of each other. The parties are free to mutually and voluntarily make any efforts to reconciliation as he, she or they shall deem proper. The foregoing provisions, however, shall not be taken to be an admission on the part of either HUSBAND or WIFE of the lawfulness or unlawfulness of the causes leading to their living apart, and shall not be taken to be an admission on the part of either HUSBAND or WIFE as to whether either party committed desertion and continues desertion, and nothing contained in this Agreement is to be deemed to justify any such continued desertion. ARTICLE II DIVORCE 2.1 This Agreement is not predicated on divorce. It is speci[fically understood and agreed by and between the parties hereto and each of the said parties does hereby warrant and represent to the other that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the nou-prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or -2- preclude either of the parties hereto from commencing, instituting or prosecuting any action or action for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may, or :shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, covenanted, and represented by HUSBAND and WIFE, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant, and representation is made for the specific purpose of inducing HUSBAND and WIFE to execute the Agreement. HUSBAND and WIFE each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal, or for any reason whatsoever of public policy, unenforceable in whole or in part. HUSBAND and WIFE do each hereby warrant, covenant and agree that, in any possible eYent, he and she are and shall forever be estopped from asserting any illegality or unenforceability as. to all or any part of this Agreement. 2.2 It is further specifically understood and agreed that the provisions of this Agreement relating to the equitable distribution of property of the parties are accepted by each party as a final settlement for all purposes whatsoever. Should either of the parties obtain a decree, judgment or order of separation or divorce in any other state, country, or jurisdiction, each of the parties to this Agreement hereby consents and agrees that this Agreement and all its covenants shall not be affected in any way by any such separation and divorce; and that nothing in any such decree, judgment, order or further modification or revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both of the parties should remarry, it being understood by and between the parties that this Agreement shall survive and shall not be merged into any decree, judgment or order of divorce or separation. 2.3 It is specifically agreed that a copy of this Agreement may be incorporated by reference into any divorce judgment or decree if or whenever sought by either of the parties hereto. Such incorporation, however, shall not be regarded as a merger, it being the intent of the parties to permit this Agreement to survive any such agreements. -3- ARTICLE III EQUITABLE DISTRIBUTION OF MARITAL PROPERTY 3.1 The parties have attempted to divide their marital property in a manner which conforms to the criteria set forth in Section 401 of the Pennsylvania Divorce Code, and taking into account the following considerations: the length of the marriage, the prior marriages of the parties, the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs for each of the parties; the contribution of one party to the education, training or increased earning power to the other party, the opportunity of each party for future acquisition 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 of dissipation of each party in the acquisition, preservation, depreciation, or appreciation of marital property, including the contribution of a party as a homemaker; the value of the property set apart to each party; the standard of living of the parties established during their marriage; and the economic circumstances of each party, including federal, state and local tax ramifications, at the time the division of the property is to become effective; and whether the party will be serving as the custodian of any dependent minor children. 3.2 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 is 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 rights of equitable distribution of the parties. 3.3 Real Property. The parties confirm that they are the owners of fee simple title to premises situate at 307 Raymon Avenue, Boiling Springs, Cumberland County, Pennsylvania,. WIFE hereby agrees to grant and convey all of her right, title and interest in and to said real estate to HUSBAND in consideration of the mutual covenants and undertakings set forth in this Agreement. In return therefor, HUSBAND shall assume sole liability for payment of the purchase money mortgage currently secured by the residence, and shall indemnify and hold WIFE harmless from payment of the same. -4- 3.4 Life Insurance. Each party agrees that the other pa~y shall have sole ownership of any insurance policies owned by the other party. Each party shall have the right to borrow, cash in policies, change beneficiaries, and exercise any other incidents of ownership of their respective policies free of any fight or claim by the other party. Each party agrees to sign any documents necessary to transfer ownership in such policies to the respective party who presently owns such policies. 3.5 Pension and Retirement Fund. Each party agrees that the other party shall retain sole ownership, possession and interest of any and all retirement, pension, profit-sharing or similar funds or accounts standing solely in his or her name. Each party shall have the right to borrow, cash in policies, change beneficiaries, and otherwise exercise any other incidents of ownership of his or her respective accounts, funds or policies, free ofanyright or claim bythe other party. Eachparty agrees to sign any documents necessary to transfer ownership or ownership interest in such funds, accounts or policies to the respective party who presently owns such. 3.6 Personal Property. The parties hereto have mutually agreed upon a division of their tangible personal property to their mutual satisfaction. The tangible personal property so divided shall be the sole and separate property of the party currently having possession thereof. 3.7 Subsequently Acquired Property. HUSBAND and 'WIFE agree to waive and relinquish any and all right that he or she may now have or hereafter acquire in any real or tangible personal property subsequently acquired by the other party. HUSBAND and WIFE specifically agree to waive and relinquish any right in such property that may arise as a result of the marriage relationship. 3.8 Motor Vehicles. WIFE currently has possession c,f a Chevrolet Malibu automobile. HUSBAND hereby waives any interest he may have to said vehicle, and hereby assigns all fight, title and interest to said automobile to WIFE. In return therefor, WIFE has agreed to be solely responsible for any payments due under any indebtedness secured by said vehicle, and shall -5- indemnify and hold HUSBAND harmless from the same. HUSBAND currently has possession of a Ford Taurus automobile. WIFE hereby waives any interest she may have to said vehicle, and hereby assigns all right, title and interest to said automobile to HUSBAND. In return therefor, HUSBAND has agreed to be solely responsible for any pa:anents due under any indebtedness secured by said vehicle, and shall indemnify and hold WIFE harmless from the same. 3.9 Cash Payment. Contemporaneously with the signing ofthis Agreement, HUSBAND shall pay WIFE the sum of Thirty-Three Thousand Five Hundred ($33,500.00) Dollars, plus reimburse to WIFE the current overpayment balance in the child support account administered through the Cumberland County Domestic Relations Office. 3.10 Intangible Personal Property. Each party shall retain sole and separate ownership of all intangible assets currently titled under his or her separate name, to include, but not be limited to, bank accounts, certificates of deposit, stocks, bonds, accounts receivable, negotiable insmunents, brokerage "street" accounts, mutual funds, and any and all other intangible assets whatsoever. ARTICLE IV RELEASE OF SUPPORT AND ALIMONY FOR HUSBAND AND WIFE 4.1 The parties herein acknowledge that by this Agreement they have been respectively secured and maintained a substantial and adequate fund with which to provide themselves sufficient resources to provide for their comfort, maintenance and support in the station of life in which they are accustomed. HUSBAND and WII:E do hereby waive, release and give up any rights they may respectively have against the other for alimony, alimony pendente lite, support or maintenance. ARTICLE V DEBTS OF THE PARTIES 5.1 Each party represents to the other that except as otherwise specifically set forth in this Agreement, there are no mai or outstanding obligations of the parties, that since the separation neither -6- party has contracted for any debts for which the other will be responsible and each party indemnifies and holds harmless the other for all obligations separately incun:ed or assumed under this Agreement. Without limiting the foregoing, HUSBAND shall satisfy the outstanding balance owing on the parties joint VISA credit card account on or before the date WIFE tenders the deed to the marital residence. ARTICLE VI CHILD SUPPORT 6.1 Support Obligation. The child support obligations of the parties shall be governed by proceedings in the Cumberland County Domestic Relations Office from time to time. ARTICLE VII MISCELLANEOUS PROVISIONS 7.1 Advice of Counsel. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel. WIFE has employed and had the benefit of Edward L. Schorpp, Esquire, as her attorney. HUSBAND has employed Robert L. O'Brien, Esquire, as his attorney in connection with this matter. Each party acknowledges that he or she has received or has been advised to receive independent legal advice from counsel of his or her selection and that each fully understands the facts and has been fully informed as to his or her legal rights and obligations and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and w~luntarily after having received such advice and with such knowledge, and that execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any collusion or improper or illegal agreement or agreements. The respective parties do hereby warrant, represent and declare and do acknowledge and agree that each is and has been fully and completely informed of, and is familiar with and cognizant of, the wealth, real and/or personal property, estate m~d assets, earnings and income of the other as set forth in this Agreement, and that each has made a full and complete disclosure to the other of his and her entire assets and liabilities, and any further enumeration or statement thereof in this Agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. 7.2 Counsel Fees. Each party agrees to be responsible for his or her own legal fees and expenses, and each party hereby agrees to waive any claim for alimony, alimony pendente lite, counsel fees, expenses or costs. In the event that either party defaults in the performance of any duties or obligations required by the terms of this Agreement and legal proceedings are commenced to enforce such duty or obligations, the party found to be in default shall be liable for all expenses, including reasonable attorneys fees, incurred as a result of such proceedings. 7.3 Mutual Releases and Waivers. A. Except as provided for in this Agreement, HUSBAND and WIFE each forever release, remise, discharge and quitclaim the other and the estate of the other, for all time to come and for all purposes whatsoever, from any action of any nature whatsoever in law or in equity, and forever release, remise, discharge and quitclaim the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, titles,, interests, or claims in or against the other, or in or to the real, personal and/or mixed property of the other (including income, appreciation, and gain from property hereafter accruing), and all rights, titles, interest and claims which he or she now has or ever may have in and/or to the other's estate, and each and every additional right, title,, interest and claim he or she has or ever may have against the other, his or her heirs, executors, administrators, and assigns, excepting only the obligations, rights a~d claims imposed or inuring to the benefit of either of the parties by reason of the terms of this Agreement. Each of the parties hereto further covenants and agrees for himself and herself, and his or her heirs, executors, administrators and assigns, th:at he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights relinquished under this Paragraph. It is further specifically understood and agreed by and between the parties hereto that WIFE and HUSBAND accept the provisions made and set forth in this Agreement by HUSBAND for WIFE and/or WIFE for la~JSBAND, in lieu of and in full settlement and satisfaction of any and all of WIFE'S rights against HUSBAND or HUSBAND'S fights against WIFE for any past, present and future claims on accotmt of support and maintenance or any other right or interest arising out of the marriage, that it is specifically understood and agreed th,,t the payments, transfers and other considerations herein recited so comprehend and discharge any and all such claims by WIFE against HUSBAND, and HUSBAND against WIFE, and are, inter alia., in full settlement and satisfaction and in lieu of HUSBAND'S and WIFE'S past, present and future claims against each other on account of maintenance and support, alimony, and also alimonypendente lite, counsel fees, costs and expenses and any other charge of any nature whatsoever arising out of their mmdtal relationship and/or pertaining to any divome proceedings which have been or may be instituted by WIFE in any Court in the Commonwealth of Pennsylvania or any other jurisdiction and/or any divorce proceeding which may have been or may be instituted by HUSBAND in the Court in the Commonwealth of Pennsylvania or any other jurisdiction or any other counsel fees, costs and expenses incurred or to be charged by any counsel or arising in any manner whatsoever. WIFE and HUSBAND agree that neither party may apply to any Court for a modification of this Agreement, with respect to alimony, distribution of property, or otherwise, whether pursuant to the Divome Code or any other present or future statute or authority. Except as provided in this Agreement, it shall be the sole responsibility of WIFE and HUSBAND to sustain themselves without seeking any support from the other party from the date of the execution of this Agreement. In the event that either of the parties shall nevertheless seek such a modification, that party shall indemnify and hold the other party harmless from and against any loss resulting therefrom including attorney's fees and costs. -9- D. Release of Testamentary Rights. Except as provided for in this Agreement, each of the parties hereto shall have the right to dispose of his or her property by Last Will and Testament, or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons who would have become entitled thereto as if the decedent had been the last to die. This provision is intended to constitute a mutual waiver by the parties of any rights to take against each other's Last Wills under the present or future laws of any jurisdiction whatsoever and is intended to confer third party beneficiary rights upon the other heirs and beneficiaries of each. Either party may, however, make such provision for the other as he or she may desire in and by his or her Last Will and Testament; and each of the parties further covenants and agrees that he or she will permit any Will of the other to be probated and allow administration upon his or her personal, real or mixed estate and effects to be taken out by the person or persons who would have been entitled to do so had HUSBAND or WIFE ,died during the lifetime of the other; and that neither HUSBAND or WIFE will claim against or contest the Will and the estate of the other. Each of the parties hereby releases, relinquishes and waives any and all rights to act as executor or executrix or administrator or administratrix of the other party's estate. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators, or assigns, for the purpose of enforcing any of the rights relinquished under this Paragraph. 7.4 Warranties. Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligation for which the estate of the other party may be responsible or liable, except as may be provided for in this Agreement. Each party agrees to indemnify or hold the other party harmless from and against any and all such debts, liabilities or obligations of each of them, including those for necessities, except for the obligations arising out of this Agreement. HUSBAND and WIFE each warrant, covenant, represent and agree that each will, now and at all times hereafter, 710- save harmless and keep the other indemnified from all debts, charges, and liabilities incurred by the other after the execution date of this Agreement, except as is ol~erwise specifically provided for by the terms of this Agreement, and that neither of them hereafter incur any liability whatsoever for which the estate of the other may be liable. 7.5 No Oral Modification. No waiver or modification of any of the terms of this Agreement shall be valid unless in writing and signed by both parties, and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 7.6 Cooperation in Execution of Documents. HUSBAND and WIFE covenant and agree that they will forthwith execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper implementation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry fully and effectively the terms of this Agreemen't. 7.7 Pennsylvania Law Shall Govern. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effbct as of the date of execution of this Agreement. 7.8 Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 7.9 Entire Agreement. 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 fo~Ih herein. 7.10 Severability. If any term, condition, clause, section, or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause, or provision shall be stricken from this Agreement, and in all other respects, this Agreement -11- shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet his or her obligation under any one or more of the Articles and Sections herein shall in no way void or alter the remaining obligations of the parties. 7.11 Equitable Distribution Under Divorce Code. It is specifically understood and agreed that this Agreement constitutes an equitable distribution of propert2t, both real and personal, which was legally and beneficially acquired by HUSBAND and WIFE, or either of them, during the marriage, as contemplated by the Divorce Code of the Commonwealth of Pennsylvania. 7.12 Disclosure. The parties warrant and represent that they have made a full disclosure of all assets prior to the execution of this Agreement. 7.13 Enforceability and Consideration. This Agreement shall survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties; and any independent action may be brought, either at law or in equity, to enfome the terms of the Agreement by either HUSBAND or WIFE until it shall have been fully satisfied and performed. The consideration for this contract and Agreement is the mutual benefits to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained is stipulated, confessed and admitted by the parties, and the parties intend to be legally bound hereby. 7.14 Affidavits of Consent. In connection with any divorce action instituted by either party, each agrees to execute and deliver all documents, including but not limited to Affidavits of Consent, as requested by counsel to permit the entry of a final decree in divorce. 7.15 Reconciliation. The parties shall only effect a legal reconciliation which supersedes this Agreement by their signed agreement containing a specific statement that they have reconciled and that this Agreement shall be null and void; otherwise, this Agreement shall remain in full force and effect. Further, the parties may attempt a reconciliation which action, if not consummated by the -12- aforesaid agreement, shall not affect in any way the legal effect of this Agreement or cause any new marital rights or obligations to accrue. IN WITNESS WltEREOF, the parties hereto have set their hands and seals the day and year first above written. WITNESS: Lori A. Smith L/R~bert ~'. Smith -13- ROBERT W. SMITH, : Plaintiff : : vs. : LORI A. SMITH, : Defendant : THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 1501 CIVIL IN DIVORCE ORDER OF COURT raised in the proceedin~ haw' g been 2004, the economic claims resolved in accordance with a separation and property settlement agreement dated May 17, 2004, the appointment of the Master is vacated and counsel can file a praecipe transmitting the record to the Court requesting a final decree in divorce. BY THE COURT, cc: ~obert L. O'Brien Attorney for Plaintiff ~dward J. Schorpp Attorney for Defendant SEPARATION AND PROPERTY SETTLEMENT AGREEMENT THIS AGREEMENT, made this ,~ 7 ~-/' day' of 2004, by and between LORI A. SMITH, of 1360 Kiner Boulevard, Carlisle, Pennsylvania, party of the first part, hereinafter referred to as "WIFE" AND ROBERT W. SMITH, 0£307 Raymon Avenue, Boiling Springs, Pennsylvania, party of the second part, hereinafter referred to as "HUSBAND". WITNESSETH: WHEREAS, HUSBAND and WIFE were mauled on June 6, 1987, in Carlisle, Pennsylvania; and WHEREAS, HUSBAND and WIFE are residents of the Commonwealth of Pennsylvania and have been so for at least the past six months; and WHEREAS, certain differences have arisen between the parties hereto which have made them desirous of living separate and apart from one another; and WHEREAS, HUSBAND and WIFE desire to settle and determine certain of their marital rights and obligations, and make an equitable distribution of their marital property, waive their rights to alimony and support and any other matters which may be considered under the Divorce Code; and WHEREAS, it is the intention and purpose of this Agreement to set £orth the respective rights and duties of the parties while they continue to live apm't from each other and to settle all financial and property rights between them; and WHEREAS, the parties hereto have mutually entered into an agreement for the division of theirj ointly owned assets, the provisions for the liabilities they owe, and provisions for the resolution o£ their mutual differences, after both have had full and ample opportunity to consult with their respective attorneys, if they so desired, and the parties now wish to have that agreement reduced to ',~riting. -'~W, THEREFORE, the parties hereto in consideration of the mutually made and to be rth hereinafter and for other good and valuable consideration, and intending to be legally bound and to legally bind their heirs, successors, assigns, and personal representatives, do hereby covenant, promise and agree as follows: ARTICLE I SEPARATION AND NON-MOLESTATION AGREEMENT 1.1 It shall be lawful for HUSBAND and WI/:E at all times hereafter to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit free from any authority, control, restraint, or interference, direct or indirect, by each other. Each party agrees that he or she will not compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. Each may have for her or his separate use and benefit the right to conduct, carry on or engage in any business, profession or occupation. Neither of the parties shall, in any way whatsoever, interfere with the other's employment or occupation, directly or indirectly. HUSBAND and WllaE shall not molest, harass, disturb, or malign each other or the respective families, employees, or employers of each other. The parties are free to mutually and voluntarily make any efforts to reconciliation as he, she or they shall deem proper. The foregoing provisions, however, shall not be taken to be an admission on the part of either HUSBAND or WIFE of the lawfulness or unlawfulness of the causes leading to their living apart, and shall not be taken to be an admission on the part of either HUSBAND or WIFE as to whether either party committed desertion and continues desertion, and nothing contained in this Agreement is to be deemed to justify any such continued desertion. ARTICLE II DIVORCE 2.1 This Agreement is not predicated on divorce. It is specifically understood and agreed by and between the parties hereto and each of the said parties does hereby warrant and represent to the other that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or -2- preclude either of the parties hereto from commencing, instituting or prosecuting any action or action for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may, or shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, covenanted, and represented by HUSBAND and WIFE, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant, and representation is made for the specific purpose of inducing HUSBAND and WIFE to execute the Agreement. HUSBAND and WIFE each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal, or for any reason whatsoever of public policy, unenforceable in whole or in part. HUSBAND and WIFE do each hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever be estopped from asserting any illegality or unenforceability a:~ to all or any part of this Agreement. 2.2 It is further specifically understood and agreed that the provisions of this Agreement relating to the equitable distribution of property of the parties are accepted by each party as a final settlement for all purposes whatsoever. Should either of the parties obtain a decree, judgment or order of separation or divorce in any other state, country, or jurisdiction, each of the parties to this Agreement hereby consents and agrees that this Agreement and all its covenants shall not be affected in any way by any such separation and divorce; and that nothing in any such decree, judgment, order or further modification or revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both of the parties should remarry, it being unden~tood by and between the parties that this Agreement shall survive and shall not be merged into any decree, judgment or order of divorce or separation. 2.3 It is specifically agreed that a copy of this Agreement raay be incorporated by reference into any divorce judgment or decree if or whenever sought by either of the parties hereto. Such incorporation, however, shall not be regarded as a merger, it being the intent of the parties to permit this Agreement to survive any such agreements. -3- ARTICLE III EOUITABLE DISTRIBUTION OF MARITAL PROPERTY 3.1 The parties have attempted to divide their marital property in a manner which conforms to the criteria set forth in Section 401 of the Pennsylvania Divorce Code, and taking into account the following considerations: the length of the marriage, the ptior marriages of the parties, the age, health, station, amount and sources of income, vocational skills,, employability, estate, liabilities, and needs for each of the parties; the contribution of one party to the education, training or increased earning power to the other party, the opportunity of each party fbr future acquisition 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 of dissipation, of each party in the acquisition, preservation, depreciation, or appreciation of marital property, including the contribution of a party as a homemaker; the value of the property set apart to each party; the standard of living of the parties established during their marriage; and the economic circumstances of each party, including federal, state and local tax ramifications, at the time the division of the property is to become effective; and whether the party will be serving as the custodian of any dependent minor children. 3.2 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 is 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 rights of equitable distribution of the parties. 3.3 Real Property_. The parties confirm that they are the owners of fee simple title to premises situate at 307 Raymon Avenue, Boiling Springs, Cumberland County, Pennsylvania,. WIFE hereby agrees to grant and convey all of her right, title and interest in and to said real estate to HUSBAND in consideration of the mutual covenants and undertakings se~t forth in this Agreement. In return therefor, HUSBAND shall assume sole liability for payment of the purchase money mortgage currently secured by the residence, and shall indemnify and hold WIFE harmless from payment of the same. 3.4 Life Insurance. Each party agrees that the other paxXy shall have sole ownership of any insurance policies owned by the other party. Each party shall have the right to borrow, cash in policies, change beneficiaries, and exercise any other incidents of ownership of their respective policies free of any right or claim by the other party. Each party agrees to sign any documents necessary to transfer ownership in such policies to the respective party who presently owns such policies. 3.5 Pension and Retirement Fund. Each party agrees that the other party shall retain sole ownership, possession and interest of any and all retirement, pension, profit-sharing or similar funds or accounts standing solely in his or her name. Each party shall have the right to borrow, cash in policies, change beneficiaries, and otherwise exercise any other incidents of ownership of his or her respective accounts, funds or policies, free of any right or claim by the other party. Each party agrees to sign any documents necessary to transfer ownership or ownership interest in such funds, accounts or policies to the respective party who presently owns such. 3.6 Personal Property. The parties hereto have mutually agreed upon a division of their tangible personal property to their mutual satisfaction. The tangible personal property so divided shall be the sole and separate property of the party currently having possession thereof. 3.7 Subsequently Acquired Property. HUSBAND and WIFE agree to waive and relinquish any and all right that he or she may now have or hereafter acquire in any real or tangible personal property subsequently acquired by the other party. HUSBAND and WI~E specifically agree to waive and relinquish any right in such property that may arise as a result of the marriage relationship. 3.8 Motor Vehicles. WIFE currently has possession of a Chevrolet Malibu automobile. HUSBAND hereby waives any interest he may have to said vehicle, and hereby assigns all right, title and interest to said automobile to WIFE. In return therefor, WIFE has agreed to be solely responsible for any payments due under any indebtedness secured by said vehicle, and shall indemnify and hold HUSBAND harmless from the same. HUSBAND currently has possession of a Ford Taurus automobile. WIFE hereby waives any interest she may have to said vehicle, and hereby assigns all right, title and interest to said automobile to HUSBAND. In return therefor, HUSBAND has agreed to be solely responsible for any payments due under any indebtedness secured by said vehicle, and shall indemnify and hold WIFE harmless fi.om the same. 3.9 Cash Payment. Contemporaneously with the signing of this Agreement, HUSBAND shall pay WIFE the sum of Thirty-Three Thousand Five Hundred ($33,500.00) Dollars, plus reimburse to WIFE the current overpayment balance in the child support account administered through the Cumberland County Domestic Relations Office. 3.10 Intangible Personal Property. Each party shall retain sole and separate ownership of all intangible assets currently titled under his or her separate narae, to include, but not be limited to, bank accounts, certificates of deposit, stocks, bonds, accounts receivable, negotiable instruments, brokerage "street" accounts, mutual funds, and any and all other intangible assets whatsoever. ARTICLE IV RELEASE OF SUPPORT AND ALIMONY FOR HUSBAND AND WIFE 4.1 The parties herein acknowledge that by this Agreement they have been respectively secured and maintained a substantial and adequate fund with which to provide themselves sufficient resources to provide for their comfort, maintenance and support in the station of life in which they are accustomed. HUSBAND and WIFE do hereby waive, release and give up any rights they may respectively have against the other for alimony, alimony pendente lite, support or maintenance. ARTICLE V DEBTS OF THE PARTIES 5.1 Each party represents to the other that except as otherwise specifically set forth in this Agreement, there are no major outstanding obligations of the parties, that since the separation neither -6- party has contracted for any debts for which the other will be responsible and each party indemnifies and holds harmless the other for all obligations separately incurred or assumed under this Agreement. Without limiting the foregoing, HUSBAND shall satisfy the: outstanding balance owing on the parties joint VISA credit card account on or before the date WIFE tenders the deed to the marital residence. ARTICLE VI CHILD SUPPORT 6.1 Support Obligation. The child support obligations of the parties shall be governed by proceedings in the Cumberland County Domestic Relations Office from time to time. ARTICLE VII MISCELLANEOUS PROVISIONS 7.1 Advice of Counsel. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel. WIFE has employed and had the benefit of Edward L. Schorpp, Esquire, as her attorney. HUSBAND has employed Robert L. O'Brien, Esquire, as his attorney in connection with this matter. Each party acknowledges that he or she has received or has been advised to receive independent legal advice from counsel of his or her selection and that each fully understands the facts and has been fully infurmed as to his or her legal rights and obligations and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and w>luntarily after having received such advice and with such knowledge, and that execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any collusion~ or improper or illegal agreement or agreements. The respective parties do hereby warrant, represent and declare and do acknowledge and agree that each is and has been fully and completely informed of, and is familiar with and cognizant of, the wealth, real and/or personal property, estate and assets, earnings and income of the other as set forth in this Agreement, and that each has made a full and complete disclosure to the other of his and her entire assets and liabilities, and any further enumeration or statement thereof in -7- this Agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. 7.2 Counsel Fees. Each party agrees to be responsible for his or her own legal fees and expenses, and each party hereby agrees to waive any claim ~or alimony, alimony pendente lite, counsel fees, expenses or costs. In the event that either party defaults in the performance of any duties or obligations required by the terms of this Agreement and legal proceedings are commenced to enforce such duty or obligations, the party found to be in default shall be liable for all expenses, including reasonable attorneys fees, incurred as a result of such proceedings. 7.3 Mutual Releases and Waivers. A. Except as provided for in this Agreement, HUSBAND and WIFE each forever release, remise, discharge and quitclaim the other and the estate of the other, for all time to come and for all purposes whatsoever, from any action of any nature whatsoever in law or in equity, and forever release, remise, discharge and quitclaim the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, titles, interests, or claims in or against the other, or in or to the real, personal and/or mixed property of the other (including income, appreciation, and gain from property hereafter accruing), and all rights, titles, interest and claims which he or she now has or ever may have in and/or to the other's estate, and each and every additional right, title, interest and claim he or she has or ever may have against the other, his or her heirs, executors, administrators, and assigns, excepting only the obligations, rights m~d claims imposed or inuring to the benefit of either of the parties by reason of the terms of this Agreement. Each of the parties hereto further covenants and agrees for himself and herself, and his or her heirs, executors, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights relinquished under this Paragraph. -8- It is further specifically understood and agreed by and between the parties hereto that WIFE and HUSBAND accept the provisions made and set forth in this Agreement by HUSBAND for WIFE and/or WIFE for HUSBAND, in lieu of and in full settlement and satisfaction of any and all of WIFE'S rights against HUSBAND or HUSBAND'S rights against WIFE for any past, present and future claims on account of support and maintenance or any other right or interest arising out of the marriage, that it is specifically understood and agreed that the payments, transfers and other considerations herein recited so comprehend and discharge any and all such claims by WIFE against HUSBAND, and HUSBAND against WIFE, and are, inter alia, in full settlement and satisfaction and in lieu of HUSBAND'S and WIFE'S past, present and future claims against each other on account o fmaintenance and support, alimony, and also alimony pendente lite, counsel fees, costs and expenses and any other charge of any nature whatsoever arising out of their marital relationship and/or pertaining to any divorce proceedings which have been or may be instituted by WIFE in any Court in the Commonwealth of Pennsylvania or any other jurisdiction and/or any divorce proceeding which may have been or may be instituted by HUSBAND in the Court in the Commonwealth of Pennsylvania or any other jurisdiction or any other counsel fees, costs and expenses incurred or to be charged by any counsel or arising in any manner whatsoever. WIFE and HUSBAND agree that neither pm-ty may apply to any Court for a modification of this Agreement, with respect to alimony, distribution of property, or otherwise, whether pursuant to the Divorce Code or any other present or future statute or authority. Except as provided in this Agreement, it shall be the sole responsibility of WIFE and HUSBAND to sustain themselves without seeking any support from the other party from the date of the execution of this Agreement. In the event that either of the parties shall nevertheless seek such a modification, that party shall indemnify and hold the other party harmless from and against any loss resulting therefrom including attorney's fees and costs. -9- D. Release of Testamentary Rights. Except as provided for in this Agreement, each of the parties hereto shall have the right to dispose of his or her property by Last Will and Testament, or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons who would have become entitled thereto as if the decedent had been the last to die. This provision is intended to constitute a mutual waiver by the parties of any rights to take against each other's Last Wills under the present or future laws of any jurisdiction whatsoever and is intended to confer third party beneficiary rights upon the other heirs and beneficiaries of each. Either party may, however, make such provision for the other as he or she may desire in and by his or her Last Will and Testament; and each of the parties further covenants and agrees that he or she will permit any Will of the other to be probated and allow administration upon his or her personal, real or mixed estate and effects to be taken out by the person or persons who would have been entitled to do so had HUSBAND or WIFE died during the lifetime of the other; and that neither HUSBAND or WIFE will claixn against or contest the Will and the estate of the other. Each of the parties hereby releases, relinquishes and waives any and all rights to act as executor or executrix or administrator or administratrix of the other party's estate. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators, or assigns, for the purpose of enforcing any of the rights relinquished under this Paragraph. 7.4 Warranties. Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligation for which the estate of the other party may be responsible or liable, except as may be provided for in this Agreement. Each party agrees to indemnify or hold the other party harmless from and against any and all such debts, liabihties or obligations of each of them, including those for necessities, except for the obligations arising out of this Agreement. HUSBAND and WIFE each warrant, covenant, represent and agree that each will, now and at all times hereafter, -10- save harmless and keep the other indemnified from all debts, charges, and liabilities incurred by the other after the execution date of this Agreement, except as is otherwise specifically provided for by the terms of this Agreement, and that neither of them hereafter incur any liability whatsoever for which the estate of the other may be liable. 7.5 No Oral Modification. No waiver or modification of any of the terms of this Agreement shall be valid unless in writing and signed by both parties, and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 7.6 Cooperation in Execution of Documents. HUSBAND and WIFE covenant and agree that they will forthwith execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desitrable for the proper implementation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry fully and effectively the terms of this Agreement. 7.7 Pennsylvania Law Shall Govern. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of execution of this Agreement. 7.8 Binding Effect. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 7.9 Entire Agreement. This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiafions between them. There are no representations or warranties other than those expressly set forth herein. 7.10 Severabilitv. If any term, condition, clause, section, or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause, or provision shall be stricken from this Agreement, and in all other respects, this Agreement -11- shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet his or her obligation under any one or more of the Articles and Sections herein shall in no way void or alter the remaining obligations of the parties. 7.11 Equitable Distribution Under Divorce Code. It is specifically understood and agreed that this Agreement constitutes an equitable distribution of property, both real and personal, which was legally and beneficially acquired by HUSBAND and WIFE, or either of them, during the marriage, as contemplated by the Divome Code of the Commonwealth of Pennsylvania. 7.12 Disclosure. The parties warrant and represent that they have made a full disclosure of all assets prior to the execution of this Agreement. 7.13 Enforceability and Consideration. This Agreement shall survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties; and any independent action may be brought, either at law or in equity, to enforce the terms of the Agreement by either HUSBAND or WIFE until it shall have been fully satisfied and performed. The consideration for this contract and Agreement is the mutual benefits to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained is stipulated, confessed and admitted by the parties, and the parties intend to be legally bound hereby. 7.14 Affidavits of Consent. In connection with any divorce action instituted by either party, each agrees to execute and deliver all documents, including but not limited to Affidavits of Consent, as requested by counsel to permit the entry of a final decree in divome. 7.15 Reconciliation. The parties shall only effect a legal reconciliation which supersedes this Agreement by their signed agreement containing a specific statement that they have reconciled and that this Agreement shall be null and void; otherwise, this Agreement shall remain in full force and effect. Further, the parties may attempt a reconciliation which action, if not consummated by the -12- aforesaid agreement, shall not affect in any way the legal effect of this Agreement or cause any new marital rights or obligations to accrue. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. WITNESS: Lori A. Smith -13- ROBERT W. SMITH, Plaintiff VS. LORI A. SMITH, Defendant THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 1501 CIVIL IN DIVORCE ORDER OF COURT 2004, the economic claims raised in the proceedin~ having been resolved in accordance with a separation and property settlement agreement dated May 17, 2004, the appointment of the Master is vacated and counsel can file a praecipe transmitting the record to the Court requesting a final decree in divorce. BY THE COURT, CC: ~obert L. O'Brien Attorney for Plaintiff ~dward J. Schorpp Attorney for Defendant SEPARATION AND PROPERTY SETTLEMENT AGREEMENT THIS AGREEMENT, made this r/ 7 ~/ day of ~ 2004, by and between LORI A. SMITH, of 1360 Kiner Boulevard, Carlisle, Pennsylvania, party of the first part, hereinafter referred to as "WIFE" AND ROBERT W. SMITH, of 307 Raymon Avenue, Boiling Springs, Pennsylvania, party of the second part, hereinafter referred to as "HUSBAND". WlTNESSETH: WHEREAS, HUSBAND and WIFE were married on June 6, 1987, in Carlisle, Pennsylvania; and VOtEREAS, HUSBAND and WIFE are residents of the Commonwealth of Pennsylvania and have been so for at least the past six months; and WHEREAS, certain differences have arisen between the parties hereto which have made them desirous of living separate and apart from one another; and WHEREAS, HUSBAND and WIFE desire to settle End determine certain of their marital rights and obligations, and make an equitable distribution of their marital property, waive their rights to alimony and support and any other matters which may be considered under the Divorce Code; and WHEREAS, it is the intention and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other and to settle all financial and property rights between them; and WHEREAS, the parties hereto have mutually entered :into an agreement for the division of their jointly owned assets, the provisions for the liabilities they owe, and provisions for the resolution of their mutual differences, after both have had full and ample opportunity to consult with their respective attorneys, if they so desired, and the parties now wish to have that agreement reduced to writing. NOW, THEREFORE, the parties hereto in consideration of the mutually made and to be kept promises set forth hereinafter and for other good and valuable consideration, and intending to be legally bound and to legally bind their heirs, successors, assigns, and personal representatives, do hereby covenant, promise and agree as follows: ARTICLE I SEPARATION AND NON-MOI,F,,qTATION AGREEMENT 1.1 It shall be lawful for HUSBAND and WIFE at all times hereafter to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit free from any authority, control, restraint, or interference, direct or indirect, by each other. Each party agrees that he or she will not compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. Each may have for her or his separate use and benefit the right to conduct, carry on or engage in any busines, s, profession or occupation. Neither of the parties shall, in any way whatsoever, interfere with the other's employment or occupation, directly or indirectly. HUSBAND and WIFE shall not molest, harass, disturb, or malign each other or the respective families, employees, or employers of each other. The parties are free to mutually and voluntarily make any efforts to reconciliation as he, she or they shall deem proper. The foregoing provisions, however, shall not be taken to be an admission on the part of either HUSBAND or WIFE of the lawfulness or unlawfulness of the causes leading to their living apart, and shall not be taken to be an admission on the part of either HUSBAND or WIFE as to whether either party committed desertion and continues desertion, and nothing contained in this Agreement is to be deemed to justify any such continued desertion. ARTICLE II DIVORCE 2.1 This Agreement is not predicated on divorce. It is specifically understood and agreed by and between the parties hereto and each of the said parties does her¢10y warrant and represent to the other that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or -2- preclude either of the parties hereto from commencing, instituting or prosecuting any action or action for divome, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may, or shall be instituted by the other party, or from making any just or proper defense thereto. It is warranted, covenanted, and represented by HUSBAND and WIFE, each to the other, that this Agreement is lawful and enfomeable and this warranty, covenant, and representation is made for the specific purpose of inducing HUSBAND and WIFE to execute the Agreement. HUSBAND and WIFE each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal, or for any reason whatsoever of public policy, unenforceable in whole or in part. HUSBAND and WIFE do each hereby warrant, covenant and agree that, in any possible event, he and she are and shall forever be estopped from asserting any illegality or unenforceability as to all or any part of this Agreement. 2.2 It is further specifically understood and agreed that the provisions of this Agreement relating to the equitable distribution of property of the parties are accepted by each party as a final settlement for all purposes whatsoever. Should either of the parties obtain a decree, judgment or order of separation or divorce in any other state, country, or jurisdiction, each of the parties to this Agreement hereby consents and agrees that this Agreement and all its covenants shall not be affected in any way by any such separation and divorce; and that nothing in any such decree, judgment, order or further modification or revision thereof shall alter, amend or vary any term of this Agreement, whether or not either or both of the parties should remarry, it being understood by and between the parties that this Agreement shall survive and shall not be merged into any decree, judgment or order ofdivome or separation. 2.3 It is specifically agreed that a copy of this Agreement may be incorporated by reference into any divorce judgment or decree if or whenever sought by either of the parties hereto. Such incorporation, however, shall not be regarded as a merger, it being the intent of the parties to permit this Agreement to survive any such agreements. -3- ARTICLE III EOUITABLE DISTRIBUTION OF MARITAL PROPERTY 3.1 The parties have attempted to divide their marital property in a manner which conforms to the criteria set forth in Section 401 of the Pennsylvania Divorce Code, and taking into account the following considerations: the length of the marriage, the prior marriages of the parties, the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities, and needs for each of the parties; the contribution of one party to the education, training or increased earning power to the other party, the opportunity of each party for future acquisition of capital assets and income, the sources of income of both parties, including bat not limited to medical, retirement, insurance or other benefits, the contribution of dissipatio~t of each party in the acquisition, preservation, depreciation, or appreciation of marital property, including the contribution ora party as a homemaker; the value of the property set apart to each party; the standard of living of the parties established during their marriage; and the economic circumstances of each party, including federal, state and local tax ramifications, at the time the division &the property is to become effective; and whether the party will be serving as the custodian of any dependent minor children. 3.2 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 is 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 rights of equitable distribution of the parties. 3.3 ~. The parties confirm that they are the o~mers of fee simple title to premises situate at 307 Raymon Avenue, Boiling Springs, Cumberland C~,unty, Pennsylvania,. WIFE hereby agrees to grant and convey all of her fight, title and interest in antd to said real estate to HUSBAND in consideration of the mutual covenants and undertakings set forth in this Agreement. In return therefor, HUSBAND shall assume sole liability for payment of the purchase money mortgage currently secured by the residence, and shall indemnify and hold WIFE harmless from payment of the same. -4- 3.4 Life Insurance. Each party agrees that the other p,xty shall have sole ownership of any insurance policies owned by the other party. Each party shall have the right to borrow, cash in policies, change beneficiaries, and exercise any other incidents of ownership of their respective policies free of any right or claim by the other party. Each party agrees to sign any documents necessary to transfer ownership in such policies to the respective party who presently owns such policies. 3.5 _Pension and Retirement Fund. Each party agrees that the other party shall retain sole ownership, possession and interest of any and all retirement, pension, profit-sharing or similar funds or accounts standing solely in his or her name. Each party shall have the right to borrow, cash in policies, change beneficiaries, and otherwise exercise any other incidents of ownership of his or her respective accounts, funds or policies, free of any right or claim by the other party. Each party agrees to sign any documents necessary to transfer ownership or ownership interest in such funds, accounts or policies to the respective party who presently owns such. 3.6 ~. The parties hereto have mutual[ly agreed upon a division of their tangible personal property to their mutual satisfaction. The tangible personal property so divided shall be the sole and separate property of the party currently having possession thereof. 3.7 Subsequently Acquired Property. HUSBAND and WIFE agree to waive and relinquish any and all right that he or she may now have or hereafter acquire in any real or tangible personal property subsequently acquired by the other party. HUSBAND and WIFE specifically agree to waive and relinquish any right in such property that may arise as a result of the marriage relationship. 3.8 Motor Vehiele~. WIFE currently has possession of a Chevrolet Malibu automobile. HUSBAND hereby waives any interest he may have to said vehicle, and hereby assigns all right, title and interest to said automobile to WIFE. In return therefor, WIFE has agreed to be solely responsible for any payments due under any indebtedness secured by said vehicle, and shall -5- indemnify and hold HUSBAND harmless from the same. HUSBAND currently has possession of a Ford Taurus automobile. WIFE hereby waives any interest she may have to said vehicle, and hereby assigns all right, title and interest to said automobile to HUSBAND. In return therefor, HUSBAND has agreed to be solely responsible for any payments due under any indebtedness secured by said vehicle, and shall indemnify and hold WIFE harmless from the same. 3.9 Cash Payment. Contemporaneously with the signing of this Agreement, HUSBAND shall pay WIFE the sum of Thirty-Three Thousand Five Hundred ($33,500 00) Dollars, plus reimburse to WIFE the current overpayment balance in the child support account administered through the Cumberland County Domestic Relations Office. 3.10 Intaneible Personal Proper _ty. Each party shall retain sole and separate ownership of all intangible assets currently titled under his or her separate name, to include, but not be limited to, bank accounts, certificates of deposit, stocks, bonds, accounts receivable, negotiable instruments, brokerage "street" accounts, mutual funds, and any and all other intangible assets whatsoever. ARTICLE IV RELEASE OF SUPPORT AND ALIMON~r _FOR HUSBAND AND WIFE 4.1 The parties herein acknowledge that by this Agreement they have been respectively secured and maintained a substantial and adequate fund with which to provide themselves sufficient resources to provide for their comfort, maintenance and support in the station of life in which they are accustomed. HUSBAND and WIFE do hereby waive, release and give up any rights they may respectively have against the other for alimony, alimony pendente lite, support or maintenance. ARTICLE V DEBTS OF THE PARTIES_ 5.1 Each party represents to the other that except as otherwise specifically set forth in this Agreement, there are no major outstanding obligations of the parties, that since the separation neither -6- party has contracted for any debts for which the other will be responsible and each party indemnifies and holds harmless the other for all obligations separately incurred or assumed under this Agreement. Without limiting the foregoing, HUSBAND shall satisfy the outstanding balance owing on the parties joint VISA credit card account on or before the date WIFE tenders the deed to the marital residence. ARTICLE VI CHILD SUPPORT 6.1 Support Oblieation The child support obligations of the parties shall be governed by proceedings in the Cumberland County Domestic Relations O,ffice from time to time. ARTICLE VII MISCELLANEOUS PROVISIONS 7.1 _Advice of Counsel. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel. W~E has employed and had the benefit of Edward L. Schorpp, Esquire, as her attorney. HUSBAND has employed Robert L. O'Brien, Esquire, as his attorney in connection with this matter. Each party acknowledges that he or she has received or has been advised to receive independent legal advice from counsel of his or her selection and that each fully understands the facts and has been fully informed as to his or her legal fights and obligations and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and voluntarily after having received such advice and with such knowledge, and that execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any collusion or improper or illegal agreement or agreements. The respective parties do hereby warrant, represent and declare and do acknowledge and agree that each is and has been fully and completely informed of, and is familiar with and cognizant of, the wealth, real and/or personal property, estate and assets, earnings and income of the other as set forth in this Agreement, and that each has made a fall and complete disclosure to the other of his and her entire assets and liabilities, and any further enumeration or statement thereof in -7- this Agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. 7.2 Counsel Fees. Each party agrees to be responsible for his or her own legal fees and expenses, and each party hereby agrees to waive any claim for alimony, alimony pendente lite, counsel fees, expenses or costs. In the event that either party defaults in the performance of any duties or obligations required by the terms of this Agreement and legal proceedings are commenced to enforce such duty or obligations, the party found to be in default shall be liable for all expenses, including reasonable attorneys fees, incurred as a result of such proceedings. 7.3 _Mutual Releases and Waivers. A. Except as provided for in this Agreement, HUSBAND and WI!~E each forever release, remise, discharge and quitclaim the other and the estate of the other, for all time to come and for all purposes whatsoever, fi.om any action of any nature whatsoever in law or in equity, and forever release, remise, discharge and quitclaim the other and the estate of such other, for all time to come, and for all purposes whatsoever, of and from any and all rights, titles, :interests, or claims in or against the other, or in or to the real, personal and/or mixed property of the other (including ncome, appreciation, and gain from propertyhereafier accruing), and all rights, titles, Interest and claims which he or she now has or ever may have in and/or to the other's estate, and each and every additional right, title, :interest and claim he or she has or ever may have against the other, his or her heirs, executom, administrators, and assigns, excepting only the obligations, rights and claims imposed or inuring to the benefit of either of the parties by reason of the terms of this Agreement. Each of the parties hereto further covenants and agrees for himself and herself, and his or her heirs, executors, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights relinquished under this Paragraph. -8- It is further specifically understood and agreed[ by and between the parties hereto that WIFE and HUSBAND accept the provisions made and set forth in this Agreement by HUSBAND for WIFE and/or WIFE for HUSBAND, in lieu of and in full settlement and satisfaction of any and all of 'WIFE'S rights against HUSBAND or HUSBAND'S rights against WIFE for any past, present and future claims on account of support and maintenance or any other right or interest arising out of the marriage, that it is specifically understood and agreed tlhat the payments, transfers and other considerations herein recited so comprehend and discharge any and all such claims by WIFE against HUSBAND, and HUSBAND against WIFE, and are, inter .alia, in full settlement and satisfaction and in lieu of HUSBAND'S and WIFE'S past, present and future claims against each other on account of maintenance and support, alimony, and also alimony pendente lite, counsel fees, costs and expenses and any other charge of any nature whatsoever arising out of their marital relationship and/or pertaining to any divorce proceedings which have been or may be instituted by WIFE in any Court in the Commonwealth of Pennsylvania or any other jurisdiction and/or any divorce proceeding which may have been or may be instituted by HUSBAND in the Court in the Commonwealth of Pennsylvania or any other jurisdiction or any other ~ounsel fees, costs and expenses incurred or to be charged by any counsel or arising in any manner whatsoever. WIFE and HUSBAND agree that neither party may apply to any Court for a modification of this Agreement, with respect to alimony, distribution of property, or other, vise, whether pursuant to the Divorce Code or any other present or future statute or authority. Except as provided in this Agreement, it shall be the sole responsibility of WIFE and HUSBAND to sustain themselves without seeking any support from the other party from the date of the execution of this Agreement. In the event that either of the parties shall nevertheless seek such a modification, that party shall indemnify and hold the other party harmless from and against any loss resulting therefrom including attorney's fees and costs. -9- D. Release of Testamentary Rights. Except as provided for in this Agreement, each of the parties hereto shall have the right to dispose of his or her property by Last Will and Testament, or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons who would have become entitled thereto as if the decedent had been the last to die. This pro.vision is intended to constitute a mutual waiver by the parties of any rights to take agmnst each other's Last Wills under the present or future laws of any jurisdiction whatsoever and is intended to confer third p~u:ty beneficiary rights upon the other heirs and beneficiaries of each. Either party may, however, make such provision for the other as he or she may desire in and by his ,or her Last Will and Testament; and each of the parties further covenants and agrees that he or she will permit any Will of the other to be probated and allow administration upon his or her personal, real or mixed estate and effects to be taken out by the person or persons who would have been entitled to do so had HUSBAND or WIFE died during the lifetime of the other; and that neither HUSBAND or WIFE will claim against or contest the Will and the estate of the other. Each of the parties hereby releases, relinquishes and waives any and all rights to act as executor or executrix or administrator or administratrix of the other party's estate. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executo,rs, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators, or assigns, for the propose of enforcing any of the rights relinquished under this Paragraph. 7.4 Warranties. Each party represents that they have not heretofore incurred or contracted for any debt or liability or obligation for which the estate of the other party may be responsible or liable, except as may be provided for in this Agreement. Each party agrees to indemnify or hold the other party harmless from and against any and all such debts, liabilities or obligations of each of them, including those for necessities, except for the obligations arising cut of this Agreement. HUSBAND and WIFE each warrant, covenant, represent and agree that each will, now and at all times hereafter, -10- save harmless and keep the other indemnified from all debts, charges, and liabilities incurred by the other after the execution date of this Agreement, except as is otherwise specifically provided for by the terms of this Agreement, and that neither of them hereat~Ier incur any liability whatsoever for which the estate of the other may be liable. 7.5 No Oral Modification. No waiver or modification of any of the terms of this Agreement shall be valid unless in writing and signed by both parties, and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. 7.6 Cooperation in Execution of Document~ HUSBA/xYD and WIFE covenant and agree that they will forthwith execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper implementation of this Agreement, and as their respective counsel shall mutually agree should be so executed in order to carry fully and effectively the terms of this Agreement. 7.7 Pennsylvania Law Shall Govern This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of execution of this Agreement. 7.8 BindS. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 7.9 EntireA reement. This Agreement constitutes the ent:[re understanding ofthe 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. 7.10 _Severability. If any term, condition, clause, section, or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause, or provision shall be stricken from this Agreement, and irt all other respects, this Agreement -11- shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet his or her obligation under any one or more of the Articles and Sections herein shall in no way void or alter the remaining obligations of the parties. 7.11 Equitable Distribution Under Divorce Code. It is specifically understood and agreed that this Agreement constitutes an equitable distribution of property, both real and personal, which was legally and beneficially acquired by HUSBAND and WIFE, or either of them, during the marriage, as contemplated by the Divorce Code of the Commonwealth of Pennsylvania. 7.12 Disclosur.___ge. The parties warrant and represent that they have made a full disclosure of all assets prior to the execution of this Agreement. 7.13 Enforceability and Consideration. This Agreement shall survive any action for divorce and decree of divorce and shall forever be binding and conclusive on the parties; and any independent action may be brought, either at law or in equity, to enforce the terms of the Agreement by either HUSBAND or WIFE until it shall have been fully satisfied and performed. The consideration for this contract and Agreement is the mutual benefits to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained is stipulated, confessed and admitted by the parties, and the parties intend to be legally bound hereby. 7.14 _Affidavits of Consent. In connection with any divorce action instituted by either party, each agrees to execute and deliver all documents, including but not limited to Affidavits of Consent, as requested by counsel to permit the entry of a final decree in divorce. 7.15 Reconciliation. The parties shall only effect a legal reconciliation which supersedes this Agreement by their signed agreement containing a specific statement that they have reconciled and that this Agreement shall be null and void; otherwise, this Agreement shall remain in full force and effect. Further, the parties may attempt a reconciliation which action, if not consummated by the -12- aforesaid agreement, shall not affect in any way the legal effect of this Agreement or cause any new marital rights or obligations to accrue. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. WITNESS: Lori A. Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. ROBERT W. SMITH Plaintiff VERSUS LORI A. SMITH Defendant NO. 2002 - ~50~ CIVIL DECREE IN DIVORCE AND NOW,~ DECREED THAT W. SMITH IT IS ORDERED AND _, PLAINTIFF, AND LORI A. SMITH ,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; The parties' Separation and Property Settlement dated May 17, 2004, is incorporated herein as a final order of court. BY T~- A hO. ~¢ ' ~ ~0 ~- ROBERT W. SMITH, Plaintiff VS, LORI A. SMITH, Defendant · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -. LAW · NO. 2002- / ~'O[ · 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 Section 3301(c) and 3301(d) of the Divorce Code. 2. Date and manner of service of the Complaint: The defendant signed an Acceptance of Service form on April 2, 2002. 3. (complete either paragraph (a) or (b).) A. Date of execution of the affidavit of consent required by Section 3301 (c) of the Divorce Code: by Plaintiff on May 10, 2004; and Defendant on May 10, 2004· B. (1) date of execution of the Plaintiff's Affidavit required by Section 3301 (d) of the Divorce Code: N/A· (2) date of service of the Plaintiffs Affidavit upon the Defendant: N/A. 4. Related claims pending: None. 5. Indicate date and manner of service of the notice of intention to file praecipe to transmit record, and attach a copy of said notice under section 3301(d)(1)(i) of the Divorce Code: None). Respe~fully submitted, Robert L.. 0 Bri~'~, 'Esquire