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HomeMy WebLinkAbout95-02272 MARITAL AORlIIIBNT tI nr "'I -, , '1,)- l'J';:J,,,,, THIS AGREEMENT, made this Jnll day of ~lIt1U'c.. September, 1995, by and between Lori C. Diesi, party of the first part, hereinafter referred to as "Wife", and salvatore G. niesi, party of the second part, hereinafter referred to as "Husband". WITNESSETH: WHEREAS, the parties hereto are husband and wife, having been married on September 4, 1993 in camp Hill, Pennsyl- vania; and WHEREAS, certain differences have arisen by and between the parties as a result of which they have now separated and contemplate living separate and apart from one another, and the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other inClUding, without limitation by speci- fication: the settling of all matters between them relating to the ownership and equitable distribution of real and personal property; the settling of all matters between them relating to the past, present and future support and/or maintenance of the children; the implementation of custody/visitation arrangements for the minor children of the parties; the settling of all matters between them relating to the past, present and future support, alimony and/or maintenance of Wife by Husband or of Husband by wife; and in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. WHEREAS, the parties being fully advised as to their respective rights, duties and obligations growing out of their marital status, particularly with respect to the relevant sec- tions of the Divorce Code of 1980, April 2, 1980, P.L. 63, Act No. 26, as amended, as amended, and being fully aware of their right to consult with or having consulted with their respective legal counselor advisors, namely Andrew C. Sheely, Esquire, Attorney for Wife, and, Lawrence J. Rosen, Esquire, Attorney for Husband, and having had the opportunity and ability to request a full and complete disclosure of income and assets from the other, and reviewing this Agreement, have come to an agreement as to each and all of their said matters of property and relations I and WHEREAS, Wife has filed a No-fault Complaint in Divor- ce, said complaint being docketed in the Cumberland County Prothonotary's office at 95 - 2272. NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter set forth, each of the parties hereto intending to be legally bound hereby by affixing their hands and seals agree as follows: 1. SEPARATION 2 It shall be lawful for each party at all times hereafter to live separate and apart from each other in such place or places as he or she may from time to time choose or deem fit. 2. INTERFERENCE Each party shall be free from interference, authority and control, direct or indirect, by the other as fully as if he or she were single and unmarried. Neither shall molest the other or compel or endeavor to compel the other to cohabit ate or dwell with him or her, or to in any way harass or malign the other. 3. WAIVER OF CLAIMS AGAINST ESTATES Except as otherwise provided herein, Husband relin- quishes his inchoate intestate right and his right to act as a personal representative in the estate of Wife, and Wife relin- quishes her inchoate intestate right and her right to act as a personal representative in the estate of Husband. Each of the parties hereto by their presents, for himself or herself, his or her heirs, executors, administrators or assigns, does remise, release, quit-claim and forever discharge the other party hereto, his or her heirs, executors, administrators or assigns or any of them, of any and all claims, demands, damages, actions, causes of actions, suits, at law or equity, of whatsoever kind or nature, for or because of any matter or thing omitted or suffered to be 3 done by said other party prior to and including the date hereof, except that this release shall in no way exonerate or discharge either party hereto from the obligations and promises made and imposed by reason of this Agreement and shall in no way affect any cause of action in absolute divorce which either party may have against each other. 4. MARITAL PROPERTY The parties hereto acknowledge that during their marriage they have acquired, individually or jointly, various assets and property, including the following: (A) 1993 Nissan pathfinder; (B) Furniture (C) Miscellaneous Personal property Husband and Wife acknowledge that they are aware of their respective rights pursuant to the Divorce Code of 1980, as amended, to obtain formal valuations or appraisals of the marital residence, and other items of marital property. However, the parties agree that they will not undertake this expense and acknowledge that no financial disclosures are attached to this agreement as separate exhibits or schedules. The parties hereby waive any necessity for completing or attaching any financial disclosure(s). Each party further acknowledges the opportunity to 4 attach a full and complete financial disclosure and that such disclosure is not required to effectuate a fair and equitable resolution of their marital rights, duties and obligations as provided in the Divorce Code of 1980, as amended. 5. PERSONAL PROPERTY The parties hereto mutually agree that they have effected a satisfactory division of the furniture, household furnishings, appliances and other household personal property between them, and they mutually agree that each party shall from and after the date hereof be the sole and separate owner of all such tangible personal property presently in his or her posses- sion, whether said property is heretofore owned jointly or individually by the parties hereto, and this Agreement shall have the effect of an assignment or bill of sale from each party to the other for such property as may be in the individual posses- sions of each of the parties hereto. The parties hereto have divided between themselves, to their mutual satisfaction, all items of tangible and intangible marital property. Neither party shall make any claim to any such items of marital property, or of the separate personal property of either party, which are now in the possession and/or under the control of the other. 5 -..... .-.- -1- L...... ::_ ':-.-"-'. From and after the date of the signing of this Agree- ment both parties shall have complete freedom of disposition as to their separate property which is in their possession or control pursuant to this Agreement and may mortgage, sell, grant, conveyor otherwise encumber or dispose of such property, whether real or personal, whether such property was acquired before, during or after marriage, and neither Husband nor Wife need join in, consent to, or acknowledge any deed, mortgage, or other instrument of the other pertaining to such disposition of property. 6. MOTOR VEHICLES The parties hereto agree that 1987 Toyota Truck is non- marital property and that Wife shall be entitled to have the sole and exclusive control, benefit, use and title of the 1987 Toyota TrUck. The parties hereto agree that Husband shall be entitled to have the sole and exclusive control, benefit, use and title of the 1993 Nissan Pathfinder which is presently encumbered by loan if favor of Dauphin Deposit Bank and Trust company. Husband further agrees that he shall refinance the existing loan on the 1993 Nissan pathfinder within sixty (60) days from date set forth above and that he shall assume full responsibility for the payment of the loan in favor of Dauphin Deposit Bank and Trust Company, holding Wife harmless from any further loan liability 6 and from any other payment related to the 1993 Nissan Pathfinder. 7. MISCELLANEOUS (A) The parties hereto acknowledge and agree that any and all savings and checking accounts, as well as certificates of deposit, owned by them jointly or singly, have been divided to their mutual and individual satisfaction. (8) Neither party hereto shall make a claim upon the other for accumulated pension, profit-sharing, retirement sup- port, retirement benefits, insurance policies, IRA's, or any retirement-related benefits. (C) The parties hereto acknowledge and agree that any and all life insurance policies owned by them jointly or singly have been divided to their mutual and individual satisfaction. Each party hereto acknowledges that they have in their sole possession those policy or policies of life insurance which they intend to keep and retain as their sole and exclusive property and, further, each party shall have the right to designate the beneficiaries of said policies. (0) The division of existing marital property is not, except as otherwise expressly provided herein, intended by the parties to constitute in any way, a sale or exchange of assets and the division is being affected without the introduction of outside funds or other property not constituting a part of the 7 marital estate. As a part of an equitable division of the marital properties and the marital settlement herein contained, the parties hereto agree to save and hold each other harmless from all income taxes assessed against the other resulting from the division of the property as herein provided. 8. DEBTS OF HUSBAND AND WIFE The parties hereto agree that any and all obligations incurred subsequent to the date of separation, said date being June 22, 1994, shall be the sole and individual responsibility of the party incurring the obligation. Husband represents and warrants to Wife that from the signing of this Agreement and in the future he will not contract or incur any debt or liability for which Wife or her estate might be responsible and shall indemnify and save harmless Wife from any and all claims or demands made against her by reason of debts or obligations incurred by him. Wife represents and warrants to Husband that from the signing of this Agreement and in the futurs she will not contract or incur any debt or liability for which Husband or his estate might be responsible and shall indemnify and save harmless Husband from any and all claims or demands made against him by reason of debts or obligations incurred by her. 9. bLIMONY. SUPPORT AND MAINTENANCE 8 Both parties acknowledge and agree that the provisions of this Agreement providing for equitable distribution of marital property are fair, adequate and satisfactory to them and are accepted by them in lieu of and in full and final satisfaction of any claims or demands that either may now or hereafter have against the other for support, maintenance or alimony. Husband and wife further, voluntarily and intelligently, waive and relinquish any right to seek from the other any payment for support, alimony and maintenance and, further, waive and relin- quish any rights to division of property, other than provided in this Agreement and, finally, waive any rights to alimony pendente lite, counsel fees and court costs. Husband and Wife both agree that they have been respectively advised and are aware of the contents of the provisions of the Divorce Code, as amended, in Pennsylvania, wherein considerations are set forth in determining an appropriate amount, if any, to be paid in the form of alimony. After being fully advised of the contents of the Divorce Code, as amended, both parties voluntarily and intelligently waive and relinquish any right to seek from the other payment for support, alimony and maintenance. 10. MUTUAL RELEASE 9 Subject to the provisions of this Agreement, each party waives his or her right to alimony and further distribution of property inasmuch as the parties hereto agree that this Agreement provides for an equitable distribution of their marital property in accordance with the Divorce Code, as amended. subject to the provisions of this Agreement, each party has released and dis- charged and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights or demands what- soever in law or equity, which either of the parties ever had or now has against the other, except any or all cause or causes of action for divorce or except in any or all causes of action for breach of any provisions of this Agreement. Each party also waives their right to request marital counseling pursuant to Section 3302 of the Divorce Code. 11. SUBSEOUENT DIVORCE A decree in divorce entered by a court of competent jurisdiction to either party shall not suspend, supersede or affect the terms of this Agreement. Both parties agree, if requested, to enter a Consent Order or Orders concerning the provisions of this Agreement in the Court of Common Pleas of Cumberland county, Pennsylvania, or any other Court of competent 10 jurisdiction, as a part of a resolution of any divorce action filed or to be filed. This Agreement, and the terms and conditions contained herein, as well as the enforcement of said terms and conditions, shall be contingent upon the granting of a Divorce Decree to either party by the Court of Common Pleas of Cumberland County, pennsylvania, or any other Court of competent jurisdiction. Furthermore, both parties hereto agree, if requested, to execute the appropriate affidavits and consents to secure a No-faUlt Divorce as may be required by the Divorce Code, as amended. Both parties hereto agree that this Agreement may be incorporated into a separate Court Order but shall not merge in such order. 12. ENTIRE AGREEMENT This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. Husband and Wife acknowledge and agree that the provisions of this Agreement with respect to the distribution and division of marital and separate property are fair, equitable and satisfactory to them based on the length of their marriage and other relevant factors which have been taken into consideration by the parties. Both parties hereby accept the provisions of this Agreement with respect to the division of property in lieu 11 of and in full and final settlement and satisfaction of all claims and demands that they may now have or hereafter have against the other for equitable distribution of their property by any court of competent jurisdiction pursuant to Section 3502 of the Divorce Code or any amendments thereto. Husband and Wife each voluntarily and intelligently waive and relinquish any right to seek a court ordered determination and distribution of marital property, but nothing herein contained shall constitute a waiver by either party of any rights to seek the relief of any court for the purpose of enforcing the provisions of this Agreement. 13. VOLUNTARY EXECUTION The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into vOluntarily, with full knowledge of the assets of both parties, and that it is not the result of any duress or undue influence. The parties acknowledge that they have been furnished with all information relating to the financial affairs of the other which has been requested by each of them or by their respective counsel. 14. ADDITIONAL INSTRUMENTS Husband and Wife shall from time to time at the request of the other, execute, acknowledge and deliver to the other party l2 any and all further instruments that may be reasonably required to give full force and effect to the conditions of this Agree- ment. 15. MODIFICATION AND WAIVER Any modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. The waiver of any term, condition, clause or provision of this Agreement shall in no way be deemed or construed as a waiver of any other term, condition, clause or provision of this Agreement. 16. BREACH If either party hereto breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for such breach, or seek other remedies or relief as may be available to him or her. Both parties agree and are aware that non-compliance with any provision of this Agree- ment permits either party to pursue appropriate legal remedies, including sanctions as set forth in 23 Pa. C.S.A. ~3105. Each party further hereby agrees to save and hold harmless the other party from any and all attorneys' fees, costs 13 and legal expenses and expenses that either may sustain, or incur or become liable or answerable for, in any way whatsoever, or shall pay upon, or in consequence Of, any default or breach by the other of any of the terms or provisions of this Agreement by reason of which either party shall or shall be Obliged to retain or engage counsel to initiate or maintain or defend proceedings against the other at law or equity or both or in any way what- soever, provided that the party who seeks to recover such attorneys' fees, costs and legal expenses and expenses must first be successful in whole or in part, before there would be any liability for attorneys' fees, costs, legal expenses and expenses. It is the specific agreement and intent of the parties that a breaching or wrongdoing party shall bear the burden and obligation of any and all costs and expenses and counsel fees incurred by the other party in endeavoring to protect and enforce his or her rights under this Agreement. All remedies provided by law and all remedies provided for in this Agreement for enforcement of the Agreement shall be deemed to be cumulative and the exercise of one remedy shall not bar or prevent the pursuit of any other remedy and either party may elect to pursue such remedies simultaneously and the exercise of a remedy one or more times shall not exhaust its use or prevent further pursuit of such remedy. 14 . 17. DESCRIPTIVE HEADINGS The descriptive headings used herein are for convenience only. They shall not have any effect whatsoever in determining the rights or Obligations of the parties. 18. INDEPENDENT SEPARATE COVENANTS It is specifically understood and agreed by and between the parties hereto that each paragraph hereof shall be deemed to be a separate and independent covenant and agreement. 19. APPLICABLE LAW This Agreement shall be construed under the laws of the Commonwealth of pennsylvania. For purposes of contract inter- pretation, this Agreement shall be construed as being drafted by both parties. 20. VOID CLAUSES If any term, conditions, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in ful\ force, effect and operation. 21. BINDING AGREEMENT This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, 15 LORI C. DIESI, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 'l'S-..J.J7.2..CIVIL TERM IN DIVORCE vs. SALVATORE G. DIESI, Defendant COMPLAINT 1. Plaintiff is Lori C. Diesi, who currently resides at 1113 Apple Drive, No. 11, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant is Salvatore G. Diesi, who currently resides at 261 Deerfield Road, camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant have been bona fide residents of the Commonwealth of Pennsylvania for at least six (6) months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on September 4, 1993, at Camp Hill, Pennsylvania. 5. There have been no prior actions of divorce or annulment between the parties. 6. Plaintiff has been advised of the availability of marriage counseling and understands that she may have the right to request that the court require the parties hereto to participate in counseling. 7. Plaintiff avers as the grounds upon Which this action is based is that: (A) That the Defendant has offered such indignities to the Plaintiff, the injured and innocent spouse, as to render her condition intolerable and life burdensome or, in the alternative; (B) That the marriage between the parties hereto is irretrievably broken and that the Plaintiff and Defendant have lived separate and apart since June 22, 1994 or, in the alternative; (C) That Plaintiff and Defendant are now living separate and apart and, at the appropriate time, Plaintiff will submit an Affidavit alleging that the parties have lived separate and apart for at least two (2) years and that the marriage is irretrievably broken. WHEREFORE, Plaintiff requests your Honorable Court to enter a decree in divorce divorcing Plaintiff and Defendant absolutely. COUNT I. EOUITABLE DISTRIBUTION B. The allegations in Paragraphs 1 through and including 7 are incorporated herein and made a part hereof. 9. Plaintiff and Defendant have legally and beneficially acquired marital property, during their marriage from september 4, 1993 to June 22, 1994. 10. Plaintiff and Defendant have been unable to agree as to the equitable division of said marital property to the date of the filing of this Complaint. WHEREFORE, Plaintiff requests your Honorable Court to equitably divide all marital property pursuant to section 3501 and 3502 of the Divorce Code prior to the entry of a final divorce decree. ~ Date: ApI': 12.(/1'1"1') Respectfully submitted Adu,J C. ~blo' Andrew C. Sheely, Esquire Attorney for Plaintiff (SEAL) 2 r ( . ~ 0, 8 ~ 11 ...., "- . - ~ ., ~'\ 0 c- o If, r, "" ? r () C' . a ~ 0 F' -- ~^~ ~ I b ... ~ .,J 1<, ...:I ~ ':4 "-1 - I f b .,' !' ~ LORI C. DIESI, . IN THE COURT OF COMMON PLEAS OF . plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. . CIVIL ACTION - LAW . . . SALVATORE G. DIESI, NO. 95- 2272 Defendant IN DIVORCE AFFIDAVIT or COHSINT 1. A complaint in Divorce under section 3301(C) of the Divorce Code was filed on April 28, 1995. I acknowledge receiving a certified copy of the Divorce complaint, said copy being served upon me by certified Mail, Restricted Delivery, on May 22, 1995. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing the Complaint. 3. I consent to the entry of a final Decree of Divorce. 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 decree is granted. 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.A. Section 4904 relating to DATE: cq.lfc . <1 S authoritiesr ~SlkJ"Lc:7~~r Salvatore G. Diesi unsworn falsification to the