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HomeMy WebLinkAbout10-12-06 (2) F:\User, Folder\Firm Docs\Gend0cs2006\3922-1 msa ~GESETTLEMENTAGREEMENT THIS AGREEMENT, made this 2D+bday of hri I ,2006, by and between DARREN W. KILLIAN of 1446 Mountain Road, Newb~ennsylvania, (hereinafter referred to as "Husband") and STEPHANIE L. KILLIAN, of 75 Quarry Hill Road, Newville, Pennsylvania, hereafter referred to as "Wife." WITNESSETH: WHEREAS, Husband and Wife were married on June 24, 2000, in Cumberland County, Pennsylvania, and two children were born to the parties, Tyler Scott Killian, born October 5, 1996, and Kaitlyn Renee Killian, born January 14, 2002; and WHEREAS, Husband and Wife have been living separate and apart from each other since January 5, 2006; and WHEREAS, Husband and Wife are residents of the Commonwealth of Pennsylvania and have been so for at least the past six (6) months; and WHEREAS, certain diverse, unhappy 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; 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 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 amble opportunity to consult with their respective attorneys, and the parties now wish to have that agreement reduced to ~ting. g ;p ,'-- C1" -:J::J ' n '.::-0 0 i~:l 0 NOW, THEREFORE, the parties hereto in consideration of the mutuallym~~o b~t f~ ~g promises set forth herein and for other good and valuable consideration, inten~e l~ly I~IJ t9 bound and to legally bind heirs, successors, assigns, and personal representa~~o h~by S'f~ ~ covenant, promise and agree as follows: r2)Jg-n :x ;-;: c5 ?- ::0 eN;'- rn ::v --l .. GO 0 )> -'1 U) DWK &v f. Page 1 of 10 SLK~ ARTICLE I: SEPARATION 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 deem fit free from any control, restrain, or interference, direct or indirect, by each other. Neither party shall molest the other or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. The foregoing provision shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness of the causes leading to them living separate and apart. 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 preclude either of the parties hereto from commencing, instituting or prosecuting any action or action for divorce. Husband and Wife do each hereby warrant, covenant and agree that, in any possible event he and she are and ever shall 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 provision 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, county, or jurisdiction, each of the parties to this Agreement hereby consents and agrees that this Agreement and all its covenants shall not be effected in any way by any such separation or 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 any of the parties hereto. It is understood by the parties that a Divorce Complaint has not been filed. Such incorporation, however, shall not be regarded a merger, it being the intent of the parties to permit Agreement to survive any such agreements. DWK f)vt Page 2 of 10 SLK~ ARTICLE ill: 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 3502 of the Pennsylvania Domestic Relations 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 need for each of the parties; the contribution of one party to the education, training or increased earning power of 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 ofthe parties established during their marriage. 3.2 The parties shall retain sole and exclusive right, title and possession of all personal property currently in their possession. Except as provided for herein, Husband shall make no claim whatsoever for any personal property in Wife's possession. Additionally, except as provided for herein, Wife shall make no claim whatsoever for any personal property in Husband's possession. Should it be necessary for either party to execute any documents to convey title to any such personal property in the other party's possession, they shall do so within thirty (30) days of the execution of this Agreement or within thirty (30) days of the request from the opposing party. a. Wife shall receive the Cornerstone Federal Credit Union Checking Account No. 9405-07 with an approximate balance of Five Hundred Dollars ($500.00); Christmas Club Account No. 9405-08 with an approximate balance of One Hundred Dollars ($100.00); Savings Account No. 9405-1 with an approximate balance of Seventy-Five Dollars ($75.00); andherSprint401K with an approximate balance of One Thousand Two Hundred Dollars ($1,200.00). b. Husband agrees to pay to Wife the sum of Five Thousand ($5,000.00) within ninety (90) days of the date of the signing of this Agreement. c. Husband shall receive the Sovereign Bank Checking Account No. 3531002163 with an approximate balance of Five Thousand Dollars ($5,000.00); his Ingersoll-Rand 401K with an approximate balance of Twenty-Seven Thousand Dollars ($27,000.00); the !rco Community Federal Credit Union Savings Account No. 28507003 with an approximate balance of One Thousand Four Hundred Sixty Dollars ($1,460.00); and Christmas Club Account with an approximate balance of Six Hundred Dollars ($600.00). 3.3 Wife shall transfer to Husband all her right, title and interest in the parties' jointly owned real estate situate at 1446 Mountain Road, Newburg, Pennsylvania. Husband agrees to assume sole responsibility for the mortgage on said real estate to Sovereign Bank with an approximate balance DWK /Jut Page 3 of 10 SLK ~J( of Sixty-Eight Thousand Five Hundred Dollars ($68,500.00). Husband further agrees to refinance said real estate within ninety (90) days from the date of the signing of this Agreement to remove Wife as an Obligor on said mortgage. Husband agrees to indemnify and hold Wife hannless from any and all liability or loss in connection with said mortgage. 3.4 Except as provided herein, Wife waives any right or interest she may have in Husband's employment benefits, including any pension benefits, retirement plan, stock option purchase plan, profit sharing plan or related matters. Except as provided herein, Husband waives any right or interest he may have in Wife's employment benefits, including any pension benefits, retirement plan, stock option purchase plan, profit sharing plan or related matters. 3.5 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. ARTICLE N: RELEASE OF SUPPORT FOR HUSBAND AND WIFE 4.1 The parties herein acknowledge that by this Agreement they have 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 pendente lite, spousal support, or maintenance. Husband and Wife specifically waive, release and give up any rights for alimony that they may be entitled to pursuant to Chapter 37 of the Pennsylvania Domestic Relations Code. ARTICLE V: DEBTS OF THE PARTIES 5.1 Each party represents to the other that except as otherwise specifically set forth herein, there are no major outstanding obligations of the parties, that since the separation neither party has contracted for any debts for which the other will be responsible and each party indemnifies and holds hannless the other for all obligations separately incurred or assumed under this Agreement. The parties agree to indemnify and hold each other hannless from any and all loss or liability in connection with said marital debts. In the event either party contracted for or incurred any debts since the date of separation, the party who incurred said debt shall be responsible for the payment thereof regardless of the name in which the account may have been charged except as otherwise specifically set forth herein. DWK i9fJr: Page 4 of 10 SLK~ Husband shall assume sole responsibility for the following marital debts and agrees to indemnify and hold Wife harmless from any and all loss or liability in connection with same: a. M&T Bak Visa credit card No. 4313027072009068 in Husband's name with an approximate balance of One Thousand Four Hundred ($1,400.00); b. Chase Platinum Mastercard in Husband's name with an approximate balance of Three Thousand Four Hundred Dollars ($3,400.00); 5.2 Each party relinquishes any right, title and interest he or she may have to any and all motor vehicles currently in the possession of the other party. a. Husband agrees to transfer to Wife all his right, title and interest in the parties' 1998 Grand Cherokee Jeep and 1990 Honda Motorcycle presently in Wife's possession. Wife agrees to indemnify and hold Husband harmless from any and all liability or loss in connection with same. b. Wife agrees to transfer to Husband all her right, title and interest in the 1993 Honda Accord, 1990 Ford Mustang, 2004 Polaris 700, 1982 Honda V 45 Magna, 2000 Alpha Sports 90" 4-Wheeler, and 2000 Dodge Dakota truck all titled in Husband's name. Husband agrees to indemnify and hold Wife harmless from any and all liability or loss in connection with same. c. Ifnecessary, within thirty (30) days of the date of execution of this document, each party shall execute the necessary documents to have said vehicles property registered in the other party's name with the Pennsylvania Department of Transportation. ARTICLE VI: MISCELLANEOUS PROVISIONS 6.1 The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counselor the parties have waived their right to have legal advice regarding the meaning and implication of this Agreement. The parties agree and consent to the fact that Sean M. Shultz, Esquire, of Knight & Associates, P.C., represents Husband. Wife has had the opportunity to retain independent legal counsel. The parties acknowledge and accept that this Agreement is, in the circumstances, fair and equitable, that it is being entered into freely and voluntarily, after having received such advice and with such knowledge 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. DWK tflfJ ~ Page 5 of 10 SLK~ 6.2 Husband and Wife do hereby mutually remise, release, quitclaim, and forever discharge the other and the estate of the other, for all times to come and for all purposes whatsoever, of and from any and all legal right, title and interest, or claims in or against the property of the other or against the estate of the other, of whatever nature and wheresoever situate, which he or she now has or at any time hereafter may have against such other. 6.3 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 and 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, 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 herein. 6.4 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. 6.5 This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of this Agreement. 6.6 This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 6.7 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. 6.8 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 shall be valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his or her obligation under anyone or more of the articles and sections herein shall in no way void or alter the remaining obligations of the parties. DWK ~ 1J7L Page 6 of 10 SLK~ 6.9 The parties warrant and represent that they have made full disclosure of all assets prior to the execution of this Agreement. Each party represents and warrants that he or she has made a full and fair disclosure to the other of all of his or her personal property interests of any nature, including any mortgage, pledge, lien, charge, security interest, encumbrance, or restriction to which any property is subject. Each party further represents that he or she has made a full and fair disclosure of all debts and obligations of any nature for which he or she is currently liable or may become liable. Each further represents and warrants that he or she has not made any gifts or transfers for inadequate consideration of Marital Property without the prior consent of the other. Each further warrants, represents, and declares that each is and has been fully and completely informed of and is familiar with and is cognizant of the wealth, real and/or personal property, estate and assets, earnings and income of the other and that each has made a full and complete disclosure tot he other of his and her entire assets and liabilities and any further enumeration or statement thereof in this Agreement is specifically waived. Each party acknowledges that, to the extent desired, he or she has had access to all joint and separate State and Federal Tax Returns (including supporting documentation) filed by or on behalf of either or both Parties during marriage. 6.10 In the event either party to this Agreement shall breach any term, covenant or other obligation herein, the non-breaching party shall be entitled, in addition to all other remedies available at law or in equity, to recover from the breaching party all costs which the non-breaching party may incur, including but not limited to filing fees and attorney's fees, in any action or proceeding to enforce the terms of this Agreement. 6.11 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 this Agreement by either Husband or Wife until it shall have been fully satisfied and performed. The consideration for this 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. 6.12 The parties both agree to cooperate with each other in obtaining a final divorce of the marriage. It is agreed that the parties will execute and file the consents necessary to obtain the divorce. Any party who fails to cooperate with obtaining the Divorce shall pay all the costs and legal fees, including attorney's fees, of the party who is seeking the divorce. DWKJ9fJJL Page 7 of 10 SLKU-- IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written. WITNESSED BY: lJ.cu.p...j tJ r ~ Darren W. Killian DWK 19 01L Page 8 of 10 SLK~ Exhibit A Assets to be retained by Husband All household furniture not listed on Exhibit B All bedroom furniture All childrens' bedroom furniture Sofa, love seat, recliner, 2 end tables and entertainment center from living room Television, Surround Sound Radio, Stand-up Lamp Table and Chairs, Coffee Table and Fish Aquarium from Dining Room 2 Computers - Dell and Gateway All kitchen appliances Microwave cart Dishes not listed on Exhibit B Wooden Bench All items in Garage (tools, tool boxes, etc.) DWK t!)U'X- Page 9 of 10 SLK~ Exhibit B Assets to be retained by Wife Longaberger Baskets Roto Tiller Sofa in Playroom Black Stand with Glass Top Table in Basement Trundle Bed Hutch in Dining Room Good Dishes Princess House items Half of the Pots and Pans White Ceramic Casserole Dishes 1 Crock Pot Green Glider Rocker Mirror with Half Moon Table in Dining Room 1 Television Cabinet in Kitchen Pink Folding Flower Chair Rod Iron Flag Holder with Flags Dolphin Lamps and Dolphin Table Any Clothes/Jackets/Shoes A Firebox DWK f)rut Page 10 of 10 SLK~