real separation agreements from - rosen · while very informative, is quite a chore, so i've...

Courthouse ConfidentialReal separation agreements from NORTH CAROLINA

Raleigh - Durham - Charlotte

FROM LEE ROSEN

Thanks for downloading "Courthouse Confidential". I

know that you'll find it helpful when working on your

own agreement. I went searching through the court-

house records in North Carolina for agreements that

covered a wide variety of issues and served as good

examples for someone who wants to do this on their

own. But I didn't stop there.

Sifting through more than 300 pages of agreements,

while very informative, is quite a chore, so I've made all of the documents here

text-searchable. This means that you can use the search function in your PDF

reader to look for the terms most relevant to your situation.

Maybe you want to know what kind of language others have used when specify-

ing who gets the vehicles, or how a 401k will be handled. Just type it in your

search box and you will see where it appears in the agreements.

The divorce process often seems like a mystery. That's no accident, it's what gives

divorce attorneys job security. I've been practicing for more than 20 years and I've

always been shocked that so many lawyers try to keep information about the

process in a "black box" and then charge you an hourly fee for the "privilege" of

picking their brains.

I believe that the more information you have, the better your decisions will be,

and these are some of the most important decisions you will ever make. The last

thing you need right now is more confusion.

Lee Rosen

TABLE OF CONTENTS

Abney..................................................................................................................4

Argaw................................................................................................................25

De Leon.............................................................................................................48

DePaz................................................................................................................68

Dingler...............................................................................................................88

Flanagan..........................................................................................................106

Meliones..........................................................................................................130

Belk..................................................................................................................154

Carter................................................................................................................190

Efaw.................................................................................................................209

Klemack...........................................................................................................227

Sutton..............................................................................................................263

Johnson...........................................................................................................282

McClellan........................................................................................................307

Morecraft.........................................................................................................324

Rigby................................................................................................................347

Robertson........................................................................................................372

Andrews..........................................................................................................390

Curnow............................................................................................................411

Hopkins...........................................................................................................433

Mitchell............................................................................................................451

Thompkins......................................................................................................479

Durham CountyABNEY

, ,

•

FOR OF DEEDS

, PM BK : 5658 PG 615-634 FEE: $68 . 00

nl~I~~~tN1 ~ 1~~1~1~11o

•

. '

NORTH CAROLINA CONTRACT OF SEPA,RATION AND "

PROPERTY SETTLEj'/lENT AGREEMENT --DURHAM COUNTY

. I. THIS CONTRACT OF SEPARATION AND PROPERTY SETTLEMENT AGREEMENT • •

by and between Risa Williams, Abney (hereinafter referred to as "Wife") a citizen and

resident of Durham County, North Carolina, and Derik Lee Abney (hereinafter referred to as

"Husband"), a citizen and resident of Durham County, North Carolina ("Husband" and

"Wife" collectively are also sometimes referred to hereinafter as "Parties"), and shall become

effective as of the date that it has been executed by each party hereto. r;;, '~,~ ~e'j

I\t.-\<.Arr\ ) 0: ">5/ 3 ~ QC:OIt+Nc-i2~

WITNESSETH: b" .... \.aM, ilL :2 '111 L.

2. WHEREAS, the parties were married on or about May 11, 1991 and are presently husband

and wife;

3. WHEREAS, there were two (2) minor children born to the marriage of the parties to wit •

Derik Javon Abney, date of birth being December 21,1993 and Jada Nicole Abney, date of

birth being July 21, 1998;

4. WHEREAS, in consequence of disputes and unhappy differences, the parties separated on or

about May 28, 2006;

5. WHEREAS, the parties desire to confirm their separation in writing and provide in

connection therewith for a final settlement of all marital and property rights;

6. WHEREAS, each of the parties is over the age of eighteen (18) years and is under no legal ,

disability; and

7. WHEREAS, in consideration of the premises and the mutual promises and agreements

contained herein, and for other good and .valuable consideration, the receipt of which is

hereby acknowledged, these parties stipulate, agree and covenant one with the other as

follows:

1

, , , GENERAL PROVISIONS

8. SEPARATION. Husband and Wife shall in the future live separate and apart wherever and

with whomever he or she may wish.

9. EMPLOYMENT. Each of the parties hereto may engage in any employment he or she may,

choose.

10. RIGHT TO CONTRACT. The parties hereto may contract as though they had never been

married.

11. INTERFERENCE. Each party shall be free from interference and control, direct or indirect,

by the other. Neither shall molest nor harass the other.

12. SUBSEQUENT DIVORCE. Either party can divorce the other on no-fault grounds. The

rights and obligations under this Agreement shall survive any divorce.

13. MUTUAL RELEASE. Subject to the provisions of this Agreement, each party has released

and discharged, and by this Agreement does for himself or herself, 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, whatsoever, at law or in equity, which

either of the parties ever had or now has against the other, known or unknown, except the

cause of action for no-fault divorce; in addition, subject to the provisions of this Agreement,

each party does hereby waive, .release, renounce and relinquish forever any marital interest or

right of any type in either real or personal property owned by the other party.

14. ADDITIONAL INSTRUMENTS. The parties, as necessary, shall execute, acknowledge and

deliver to the other any further instruments reasonably required to give full force and effect

to the provisions of this Agreement.

15. SALE OF PROPERTY. In the event of the sale, transfer or conveyance of any real or ,

personal property now owned or hereafter acquired by either party, if either party to this

Agreement is called upon to execute a deed, conveyance, bill of sale, or other instrument

conveying property, then that party will sign any such instrument which may be reasonably

requested or reasonably necessary to perfect title in the grantee of the property which is

2

c ,

•

, •

s5JUght to be conveyed. Subject to the provisions of this Agreerr,ent, the parties agree to any "

• •

conveyance of property, real or personal, by the other and such conveyance of property may

be made by each party without the further consent or approval of the other. The party not in

possession or not in control of the property being conveyed shall not be required to make any

warranty to the grantee.

16. FREE TRADER. Except .as otherwise provided herein either party may at any time .

hereafter acquire, possess, encumber, transfer, conveyor otherwise deal with any and all

classes of property real or personal, tangible or intangible, or mixed, whether now owned or

possessed, or hereafter acquired, by either of them, without the joinder of the other party and

with the same force and effect as if they were unmarried. It is agreed that all persons dealing

with the parties may rely upon this Agreement as containing all of the provisions necessary

to the parties being authorized to acquire, hold, manage, transfer, and convey their property

without the knowledge or consent or joinder of the other spouse.

17. AMENDMENT. This Agreement may be amended only by further written agreement

executed in accordance with North Carolina General Statute 52-10.1.

18. SITUS. This Agreement shall be construed and governed under North Carolina law.

19. ADDRESS OF PARTIES. Each party shall, at all times, keep the other infolllled of his or .

her place of residence and telephone number and shall promptly notify the other of any

change and give the address of the new place of residence and telephone number, so long as

either party has obligations under this Agreement.

20. 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.

21. BINDING EFFECT. Except as otherwise stated herein, all the provisions of this

Agreement shall be binding upon the respective heirs, next of kin, executors, administrators

and assigns of the parties.

22. ENFORCEMENT. That if either party fails in the due performance of his or her obligations

3

,

- .

hereunder, the non-breaching party r:all have the right to bring suit for specific performance ,

of this Agreement, and/or for monetary damages, and the breaching party shall pay the costs

of any such legal proceeding, including reasonable attorney's fees, anything herein to the

contrary notwithstanding,

23, RESERVATION OF RIGHTS. The failure of either party to take advantage of any default

or violation of the covenants and conditions of this Agreement on the part of the other shall

not constitute a waiver thereof or relinquishment of the right to require strict perfonnance by

the other party. Nor shall any custom or practice which may develop between the parties in

the course of performance of this Agreement be construed to waiver or lessen the right of

either party to insist upon compliance with the provisions hereof by the other.

24, PARTIAL INVALIDITY. If any provision of this Agreement is held to be invalid or

unenforceable, all other provisions shall nevertheless continue in. full force and effect.

25, JURISDICTION. Each party hereby submits himself or herself to the jurisdiction of the

Courts of the State of North Carolina in any future action brought by either party to enforce

the provisions of this Agreement.

MARITAL RIGHTS SETTLEMENT

26, REAL PROPERTY. The parties are presently owners as tenants by the entirety of that

house and lot located at 1509 Oak Forest Drive, Hillsborough, NC 27278, in Durham

County, North Carolina, which said property, shall hereinafter be referred to as "the

residence. ".

27. Upon execution of this Agreement, Husband shall be entitled to exclusive use, possession,

and ownership of the residence. It is further understood and agreed that Husband will assume

full responsibility for the property and agrees to make the monthly mortgage payments, pay .

the escrow amounts for hazard insurance and property taxes and to pay all insurance and

property taxes incurred in connection with said property.

28. Husband shall refinance the house within ninety (90) days of the execution of this Agreement

4

,

•

- . •

and reniove Wife's name from any and all indebtedness associated with the residence and

pay to Wife $15,000.00 for her share of the equity in the residence. Husband further agrees to .

indemnify and hold Wife harmless from any and all debt or liability associated with the

residence That both parties agree to cooperate to execute any and all documents necessary to

effectuate the transfer of this property and that Wife agrees upon execution of this Agreement

to sign a Quitclaim Deed or Non-warranty Deed transferring all of her title or ownership in

said residence to Husband and Wife waives any interest in the residence and residence shall

be Husband's sole and separate property.

29. OTHER REAL PROPERTY: That Husband and Wife acknowledge that Wife has separate

property, which includes a house and lot·on Lloyd Street. That Husband and Wife agree that

said residence on Lloyd Street shall continue to be Wife's sole and separate property free

from any claim, right or title by Husband and Husband waives any interest in said property to

Wife. That Husband agrees to sign any and all documents necessary to transfer title of the

Lloyd Street residence to Wife upon the execution of this Agreement.

30. That Husband and Wife further agree that there is a Berkley Group home which is Husband's

separate property and Husband and Wife agree that Husband shall be allowed to keep the

Berkley Group home located at 1229 Berkley, Durham, NC 27705 as his sole and separate

property free from any claim, right or title by Wife. That Wife waives any interest in the

Berkley Group home and property and that Wife agrees to sign any and all documents

necessary to transfer title of said group home and residence to Husband upon execution of

this Agreement.

31. That the parties further stipulate and agree that they have rental property located at 1206 Ellis

Road, Durham, NC; 1202 Ellis Road, Durham, NC; and 511 Dunbar Drive, Durham, NC.

Upon execution of this Agreement Husband shall be entitled to exclusive use, possession,

and ownership of these three (3) rental properties as his sole and separate property. It is

further understood and agreed that Husband will assume full responsibility and liability for

the property and agrees to make the monthly mortgage payments and pay the escrow

5

•

., I

amounts for hazardous insurance and prop~rty taxes and to pay all insurance and property .

taxes in current connection with said rental property. That Husband shall refinance these

properties within ninety (90) days of the execution of this Agreement and remove Wife's

name from any and all indebtedness associated with said properties. That Husband further

agrees to indemnifY and hold Wife harmless from any and all debt or liability associated with

the rental properties. That Wife agrees to sign any and all documents necessary to effectuate

the transfer of these properties upon the execution of this Agreement.

32. PERSONAL PROPERTY. In settlement, adjustment and compromise of all personal

property questions and rights between the parties, they covenant and agree that their property

shall be divided as follows.

33. A.) Automobiles. Wife is entitled to exclusive use and possession of that certain

1996 Acura presently titled in s name. Husband relinquishes any and all I.

interest he has in said vehicle to Wife upon execution of this Agreement. Wife agrees to

assume any and all liability associated with said vehicle. Wife shall indemnifY and hold

Husband harmless from any and all liability associated with said vehicle and shall be

responsible for any liens, taxes, loan payments, and other costs.

34. Husband is entitled to exclusive use and possession of that certain 2002 Cadillac Escalade,

1992 Nissan 1600 NX, and 1995 E-250 Work Van presently titled in Husband's name. Wife

relinquishes any and all interest she has in said vehicles to Husband upon execution of this

Agreement. Husband agrees to assume any and all liability associated with said vehicles.

Husband shall indemnifY and hold Wife harmless from any and all liabilities associated with

said vehicles including liens, taxes, loan payments or other costs associated with said

vehicles.

35. Each party agrees to indemnify and hold the other harmless from all liability arising by

reason of their separate operation of any of the aforesaid vehicles. The parties shall obtain

liability insurance in their separate names for their respective vehicles and shall pay such

premiums on said policies as they become due. Both Husband and Wife shall each sign any

6

•

and all documents including titles necessary to transfer title of the vehicles as c\irected in this

Agreement upon execution of this Agreement.

36. B) Specific Personality. Husband and Wife agree that Wife shall be allowed to keep

as her sole and separate property any and all personal property currently in her possession •

and that Husband waives any and all rights to all items currently in Wife's possession.

37. Husband and Wife agree that Husband shall be allowed to keep as his sole and separate

property any and all personal property currently in his possession and that Wife waives any

and all rights-to all items currently in Husband's possession.

38. C) Bank and/or Financial Accounts. It is mutually agreed that each party shall

retain all right, title and interest in and to any checking accounts, savings accounts,

certificates of deposit, savings bonds, and any and all other deposits or accounts in their own

names and that each waives any interest in the other's accounts.

39. All items of property hereinabove allotted to each of the respective parties shall be owned,

held and enjoyed by said party independently of any claim or right of the other with full

power to dispose of the same as fully and effectively, in all respects and for all purposes, the

same as if he or she were unmarried. The parties agree to execute any and all papers and

instruments in writing if, as and when such execution shall be necessary in order to effectuate

the express provisions hereof.

40. The parties each acknowledge that the remainder of their _personal property not specifically

mentioned herein has been orwill be divided between the parties to the satisfaction of each;

that this Agreement shall constitute a bill of sale for air property, whether specified or not;

and that each party does hereby transfer and assign all right and interest in all property

reserved by the other.

41. D) Intangible Assets. Husband and Wife agree that each party shall retain as their . .

sole and separate property any and all life insurance policies in which they are the title owner

as their sole and separate property and that each party waives any interest in the other's life

insurance policies. Both Husband and Wife agree that each shall be allowed to change the

7

beneficiary of their life insurance policies as each t!~~ms fit.

42. PRESENT OUTSTANDING DEBTS. It is mutually agreed that each of the parties shall be

solely responsible for any and all payments due on the debts set out in the following

subparagraphs. Each of the parties expressly agrees to make all payments due on such debts

as are assumed by himlher in a timely marmer, and recognizes that late payment of such

debts by himlher may result in damage to the credit-worthiness of both parties.

43. DEBTS ASSUMED BY WIFE. The following debts shall be assumed and paid solely by the

Wife: a) all debts currently in Wife's name individually; b) all debts incurred by Wife since

the parties separated; and c) any and all debt on Wife's vehicles or any real property that is

. being granted to Wife.

44. DEBTS ASSUMED BY HUSBAND. The following debts shall be assumed and paid by the

Husband: a) all debts currently in Husband's name individually; b) all debts incurred by

Husband since the parties separated; c) all debts encumbering and liabilities attached to real

property described herein, including the mortgage on 1509 Oak Forest Drive and including •

the CitiFinancial Debt of approximately $12,500.00

45. PA YMENT OF DEBTS AND INDEMNIFICATION. Except asmay be set out hereinabove

or elsewhere in this Agreement, each party shall assume full responsibility for all payments

on loans or debts incurred by that party, together with all of those debts assumed by that

party pursuant to sections above. The Husband covenants that he has not incurred any

liability or indebtedness except that referred to herein, for which the Wife shall have any

financial responsibility, and that he will indemnify, save and hold the Wife harmless from

any obligation, which he has incurred or assumed herein. The Wife covenants that she- has

not incurred any liability or indebtedness except that referred to herein, for which the

Husband shall have any financial responsibility, and that she will indemnify, save and hold

the Husband harmless from any obligation, which she has incurred or assumed herein. In the

event that either party should fail to pay any of the debts he has agreed to pay hereinabove, or

should such party be so late in paying any such debt as to impair his or her credit ratings, and

8

•

- .

such non-payment or 18te payment should have the potential to effect the credit-worthi\less of

the other party, the innocent party, at his or her sole and only discretion and option, shall

have the right to pay such debt in a timely manner and to obtain indemnification from the

breaching party for any such payments made. In such case, the innocent party shall be

entitled to recover from the breaching party any and all damages incurred or suffered,

including interest at the rate of 8% per annum on services paid for the other party from the

date paid, all such sums paid by said innocent party on behalf of the breaching party, and

reasonable attorney's fees for any actions taken to enforce the provisions of this paragraph.

Nothing contained herein should be in any way construed to permit or allow either party to

delay or default in making payments agreed to be made hereinabove, nor does the payment of

any such debt or debts by the innocent party in any way discharge the breaching party from

the obligation to pay all such debts.

46. FUTURE DEBTS. From and after the date of separation, neither party shall charge or

permit to be charged to or against the other any purchase or purchases either of them may

hereafter make, and shall not hereafter create any engagements or obligations in the name of

or against the other, and shall never thereafter secure or attempt to secure any credit upon or

in connection with the other, or in his or her name, and each of them will promptly pay all

debts and discharge all financial obligations which each may incur for himself or herself, and

each of them will hereafter hold the other free and h armless from any and all debts and other

obligations which the other may incur.

47. RETIREMENT BENEFITS. That Husband and Wife do presently have a retirement and/or

profit sharing plans with their respective employers. That Husband and Wife agree that Wife

shall be allowed to keep her State retirement and 401(k) as her sole and separate property

free from any claim, right or title by Husband and that Husband waives any interest in Wife's

retirement. That the parties further agree that Husband has a pension from the State as well as

a 40 I (k). That Husband and Wife agree that Wife shall be entitled to $15,000 from

Husband's 401(k) as her share of Husband's retirement that was acquired from date of

9

- .

marriage to date of separation. That Husband and Wife further agree that Wife shall be

entitled to $15,000 from his 401(k) plus any interest or losses thereon from the party's date

of separation to the date of distribution. That ·V,'ife· shall be responsible for securing an ~u.",'oa od l..ll'< l)LA

attorney to prepare the Qualified Domestic Relations Order to divide Husband's 401(k). That

in addition, Husband and Wife agree that Wife shall be entitled to $20,000 from Husband's .

pension with the State of North Carolina. That Husband and Wife agree that the remainder of

Husband's pension shall be Husband's sole and separate property free from any claim, right,

or title by Wife. That

Order transferring to

secure (Ill attorney to prepare a Qualified Domestic Relations Q.."'''' j)l.f)

her $20,000 from Husband's State pension plan and that Husband

agrees to provide any and all documents necessary in order to prepare those Qualified

Domestic Relations Orders. That the remainder or balance of Husband's retirement not

divided to Wife shall be Husband's sole and separate property free form any claim, right or

title by Wife.

48. FURTHER RELEASES. Husband, in consideration of the mutual stipulations and

agreements herein and, except as otherwise set forth, does hereby give, grant, bargain, sell,

convey, release, set over, and quitclaim unto Wife, her heirs and assigns forever, the right to .

administer the Estate of Wife, all and every right of courtesy and all, each and every right or

rights, interest or interests, Estate or Estates, whatsoever which he now or may hereafter

have, including any and all rights of inheritance, dissent and distribution arising out of the

marital relationship in and to any and all property owned by Wife or acquired by her, and

each and every right, interest and Estate whatsoever which he has heretofore acquired or may

hereafter acquire in and to any property which Wife now has, owns, or has an interest in, as

well as for any rights, interests, titles and estates whatsoever in any and all property, whether

real or personal, which Wife may acquire or become the owner of or obtain an interest in.

Husband covenants that he will not at any time in the future make any claim to any interest or

Estate whatsoever to any property, whether real, personal or mixed, which Wife now owns or

may hereafter acquire, and he does hereby consent to the sale, transfer, conveyance,

10

. .

alienation and encumbrance by Wife to any and all property now owned or hereafter acquired

by Wife in her own name or a joint tenants with any other person.

49. Wife, in consideration of the mutual stipulations and agreements herein and, except as

otherwise set forth, does hereby give, grant, bargain, sell, convey, release, set over, and

quitclaim unto Husband, his heirs and assigns forever, the right to administer the Estate of

Husband, all and every right of courtesy and all, each and every right or rights, interest or

interests, Estate or Estates, whatsoever which she now or may hereafter have, including any

and all rights of inheritance, dissent and distribution arising out of the marital relationship in.

and to any and all property owned by Husband or acquired by him, and each and every right,

interest and Estate whatsoever which she has heretofore acquired or may hereafter acquire in .

and to any property which Husband now has, owns, or has an interest in, as well as for any

rights, interests, titles and estates whatsoever in any and all property, whether real or

personal, which Husband may acquire or become the owner of or obtain an interest in. Wife

covenants that she will not at any time in the future make any claim to any interest or Estate

whatsoever to any property, whether real, personal or mixed, which Husband now owns or

may hereafter acquire, and she does hereby consent to the sale, transfer, conveyance,

alienation and encumbrance by Husband to any and all property now owned or hereafter . .

acquired by Husband in his own name or a joint tenants with any other person.

50. EQUITABLE DISTRIBUTION. The property settlement as provided herein is the act of

Husband and Wife in equitably dividing their property as provided under North Carolina

General Statute 50-20(d). Each releases the other from any further claim which would or

might arise in favor of either under North Carolina General Statute 50-20, or any other state

or federal law involving division separate, marital or divisible property owned by the parties.

51. TRANSFERS OF PROPERTY INCIDENT TO DIVORCE. The parties hereto agree: (i)

that the transfer of property hereunder is related to the divorce; (ii) that the transfer of

property hereunder is a transfer incident to divorce and is related to the cessation of the

marriage; (iii) that the intent and purpose of this Agreement is for the transfer of property

11

h~reunder to be tax free pursuant to Section 1041 of the Internal Revenue Code and the

applicable provisions of North Carolina Law and for no gain or loss to be recognized by

either party as a result of such transfer; (iv) that the parties shall file a formal election, if

necessary, or otherwise take such actions as may be required by applicable provisions of the .

state or federal income tax laws and regulations to give full force and effect to the aforesaid

intent and purpose.

CUSTODY AND SUPPORT PROVISIONS

52. CUSTODY. After a thorough review of the interest, abilities and desires of the parties, and

with careful consideration given to the best interests of the children, the parties agree that it is

in the best interest of the minor children that Wife and Husband share joint legal and physical

custody. That the parties agree ·to share and are currently sharing physical custody on a one

week/one week basis. In the event either party has a job change that renders this arrangement

no longer feasible, the parties agree that if they carmot reach an agreement on custody that

they will both attend mediation to try to resolve any issues of custody and visitation before .

filing any action in Court. In the event the parties cannot reach an agreement in mediation a

Court shall then revise the schedule as it deems proper

53. The parties shall follow the holiday schedule set out below:

a. Thanksgiving is defined as from the Wednesday after school before Thanksgiving

until the Sunday following Thanksgiving at 7:00 pm. Wife shall have

Thanksgiving on even numbered years. Husband shall have Thanksgiving on odd

numbered years.

b. Wife shall be entitled to visitation with the children from 6:00 pm on December

22 until 6:00 pm on December 24th on even numbered years and Husband shall be

entitled to visitation during the same time on odd numbered years. That from 6:00

pm on December 24th until 6:00 pm on December 26 Wife shall be entitled to

visitation with the minor children on odd numbered years and Husband shall be

entitled to visitation during the sametiine frame on even numbered years.

12

c. Easter shall be defined [,;,m 9:00 am on Good Friday until 7:00 pm on Easter

Sunday. That Wife shall be entitled to Easter on odd numbered years and .

Husband shall be entitled to Easter on even numbered years.

d. The minor children shall always be with Wife from 9:00 am to 6:00 pm on

Mother's Day.

e. The minor children shall always be with the Husband from 9:00 am to 6:00 pm on

Father's Day each year.

f. Both parties shall be allowed to share time with the children on their birthdays

and that each party shall be allowed at least two (2) hours on each child's

birthday.

g. All holiday and summer visitation shall supercede any regularly scheduled

visitation and custody.

54. WELFARE OF THE CHILD. Husband and Wife shall consult together frequently in

an effort to agree concerning the general health, welfare, education, and development of the

minor child to the end that they adopt a hallnonious policy in regard to the child's

upbringing insofar as possible. Neither party shall attempt or condone any attempt, directly

or indirectly, to estrange the child from the other part or to injure or impair the natural love

and affection between the parent and the child. The parties shall, at all times, encourage

and foster in the child sincere respect and affection for both parents. Each party shall

immediately advise the other as to any emergency, serious illness or other major

development with respect to the child. Each parent will be entitled to immediate access

from the other, or third party, to records and information pertaining to the minor child

including, but not limited to, medical, dental, health, school, or educational records. Each

party shall be entitled to speak with the minor child by telephone at reasonable times and

intervals when the child shall be with the other party.

55. SUPPORT OF THE MINOR CHILD. It is understood and agreed that both parties have

a moral and legal obligation and responsibility to support their minor children. In

13

•

recognition of that responsibility, the parties, after a careful review' of their respective

financial positions, have agreed that no child support is currently required to be paid by

either party in light of the joint physical custodial situation.

56. HOSPIT ALIZA TION INSURANCE. So long as Husband is able and so long as

Husband in employed, he will maintain, pay for, and keep in force a policy of medical and

hospitalization insurance for the minor children .. Husband and Wife shall share equally any

and all unreimbursed medical expenses to the extent not covered by said policies of

insurance until the minor children reaches the age of eighteen (18) or graduates from high

school whichever occurs last.

57. DEPENDENCY EXEMPTION and DA YCARE CREDIT. Husband and Wife agree

that Husband and Wife shall share the tax dependency exemptions and daycare credits

equally in light of their joint physical custody. That Husband shall be allowed to claim

Derik lavon Abney as a dependency exemption and for any and all daycare credit for tax

purposes each year and Wife shall be allowed to claim lada Nicole Abney as a dependency

exemption and for any and all daycare credit for tax purposes. That Husband and Wife

agree that once Husband can no longer claim Derik lavon Abney the parties will then

alternate the exemption for lada.

58. SUPPORT AND MAINTENANCE OF SPOUSE. Each spouse hereby acknowledges

that he or she is not dependent upon or in need of support and maintenance from the other,

and each party hereby waives all claims and demands against the other for support,

maintenance, and alimony, both post-separation spousal support, and permanent alimony,

including allowances for attorney's fees and suit money which he or she or may hereafter

have or may in anyway be or become entitled to by reason of marriage, it being understood

that this settlement is a total and complete release of each party by the other of all matters

and charges whatsoever except as set forth herein.

·59. MEDICAL INSURANCE FOR SPOUSE. That each party shall be responsible for

providing their own health insurance coverage.

14

, ,

- '

,

60, RELEASE OF SPOUSE AS ENDORSER ON OBLIGATIONS. Wife shall, on or before •

,

the execution of this Agreement, undertake to release Husband of all endorsements and ,

obligations entered into by him on her behalf in relation to the execution or endorsement of

any promissory notes or other obligations now outstanding whereby Husband was in fact

only an endorser or guarantor of any such obligations, whether the same was signed by him

or as joint maker or more expressly as guarantor or endorser, and Wife shall, at all times,

indemnifY him against such endorsements and obligations. Husband shall, on or before the

execution of this Agreement, undertake to release Wife of all endorsements and obligations

entered into by her on his behalf in relation to the execution or endorsement of any

promissory notes or other obligations now outstanding whereby Wife was in fact only an

endorser or guarantor of any such obligations, whether the same was signed by her or as

joint maker or more expressly as guarantor or endorser, and' Husband shall, at all times,

indemnifY her against such endorsements and obligations.

61. FULL DISCLOSURE. Each party to this Agreement has been advised by his or her ,

respective counsel of his or her right to compel Discovery and inspection of the business

and personal financial books and records of the other party and of his or her right to have

accountants, appraisers and others investigate, appraise and evaluate any or all of the

tangible or intangible personal property and business assets of the other. Each party has

specifically waived the further exercise of these rights and has, instructed his or her attorney

not to take any further measures, themselves or through others, with respect to Discovery,

inspection, investigation, appraisal or evaluation of all such property and assets of the other

party. The decisions on the part of the party not to exercise further rights of disclosure are

based upon the acknowledgment by each party that he or she is entirely satisfied with the

disclosure as presently made of the financial circumstances of the other party 'hereto

including, but not limited to, income, income potential, marital and separate property of the

other party, and all other aspects of the present and prospective financial circumstances of

the other party.

15

62. LEGAL REPF;ESENTATION BY COUNSEL. The Husband has retained Attorney Ann M.

Credle and has consulted with said attorney with respect to the protection of his interests in

the negotiation and preparation of this Separation Agreement and Property Settlement.

Wife has retained Attorney Laura Irwin and has consulted with said attorney with respect

to the protection of her interests in the negotiation and preparation of this Separation and

Property Settlement Agreement.

63. CONVEYANCES UNDER DEED OF SEPARATION. The parties further hereby agree,

subject to the provisions of this Agreement, that each party may henceforth acquire, hold,

manage, alienate, lease and convey his or her property without the other party's knowledge,

further consent or joinder in accordance with the provisions of North Carolina General

Statute 39-13.4 just the same as if the party had never been married to the other, and further

does hereby release, relinquish and renounce any and all right to administer upon the

other's Estate.

64. RECONCILIATION. In the event· of recQnciliation and resumption of the marital·

relationship between the parties, the provisions herein of settlement and disposition of

property rights and other rights shall remain valid and shall continue in full force and effect

without abatement of any term or provision thereof, except as otherwise provided by

written agreement duly executed by each of the parties after the date of reconciliation .

. 65. VOLUNTARY EXECUTION. The provisions of this Agreement and their legal effect are

fully understood by the parties, and each party acknowledges that this Agreement is fair

and equitable; that it is being entered into voluntarily; and that it was not the result of any

duress or undue influence.

66. INCORPORATION OF AGREEMENT. This Agreement shall be incorporated into a

final Decree of Divorce.

67. TAX RETURNS. Husband and Wife shall decide by December 31, 2007 whether or not

they decide to file joint or separate. Failing a written agreement, the parties will file

separate income tax returns. Any tax refund for the tax years the parties filed jointly shall

16

•

•

- .

. , be evenly divided between the parties. Any tax liaL'ility to be paid for the years the parties

filed jointly shall be equally divided between the parties.

68. In the event of an audit of any of the parties' joint tax returns, the parties agree to cooperate

with one another in responding to any questions .on issues raised regarding the same. Each

party shall be responsible for, and shall defend, indemnity, and hold the other harmless of

any additional taxes owed on their respective incomes, or on any deductions or allowances

related to their individual incomes. The parties agree that any and all property transfers

between the parties shall be treated in accordance with the Tax Reform Act of 1984.

69. DEFAULT/ATTORNEY'S FEES, Should either party default in performance of any

obligation to pay money or transfer other things of value which such party is required to

payor transfer hereunder, and such default continues for fifteen (15) days after written

notice of the default is sent to him or her, then in any action commenced by either party in

which it is judicially determined that the defaulting party is in default, the defaulting party

shall pay to the other party the attorney's fees reasonably incurred by such other party in

connection with the action. Likewise, should it be determined that there was no default, the

defending party shall be awarded attorney's fees reasonably incurred by the party in defense

of the action.

70. STATUTE OF LIMITATIONS, This Agreement is executed under seal, and either party

may institute action against the other party to recover damages or specific performance for

breach of any provision hereof at any time within a ten (10) year period next following the

date of the breach of the contract.

71. CAPTIONS, The captions and headings of the paragraphs of this Agreement are for

convenience only and are not to be used to interpret or define the provisions thereof.

. 72. COUNTERPARTS, This Agreement may be executed simultaneously in one or more

counterparts, each of which shall be deemed an original, but all of which together shall

constitute one and the same instrument.

73. RECORDATION. The parties agree that this Agreement shall not be recorded; however,

17

, , ,

if recordation is nece:;sary, a memorandum hereof shall be executed by either party upon . .

request by the other party, and may be recorded in any recording office at any time. No

such memorandum of agreement shall contain the details or financial provisions of this

Agreement, except as otherwise specifically agreed upon by the parties. ,

74. INTERPRETATION. No provision of this Agreement shall be interpreted for or against

any party because that party, or the party's agent or legal representative, drafted the

agreement of the particular provision, and that parties hereby unconditionally waive such

defense or claim regarding this Agreement. This stipulation may be used in Court

regarding any claim or defense based upon this Agreement.

75. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals to this

Agreement, in duplicate originals, one of which is retained by each of the parties the day

and year written below.

This the /6-1 b day of ~n-e 2007

This the \ '5 + h day of T lA "e.., ,2007.

18

• ,vA 41"""'-----' ; • ...---..-, illiams Abney

'Cl... Derik Lee Abney

.. ,

NORTH CAROLINA

--'D""U""r'-!h!-<(I"-.!f'Yl'-'---__ COUNTY

Sworn to (or affinned) and subscribed before me this day by 1{, sa Lu"lIi~fhs. flbn(! " . ~ I have personal knowledge of the identity of the principal; 0 I have slen satisfactory evidence of the principal's identity, by a current state or federal identification with the principal's photograph in the form of a ---,_:--:--______ ; 0 a credible witness has sworn to the identity of the principal.

Signat e of Notary

rna RtoaFl.eT !YJ. tuJlITU, Notary Public Print or Type Name of Notary

My Commission Expires:.:oI'a-J" Iv 0/..010 7

. Sworn to (or affinned) and subscribed before me this day by 'De,qll< L"e /}bn f tI . 0 I have personal knowledge of the identity

of the principal; G}r !fave seen satisfactory evidence of the principal's identity, by a current state or federal identification with the principal's photograph in the fonn of a Ne D m v' I. 'e e J1 5 e ; 0 a credible witness has sworn to the identity of the principal.

19

•

of Notary

fnJfl/;?aCUJ7 rn. Wkr-e.- ,Notary Public Print or Type Name of Notary

My Commission Expires: c9,:J,Jt.'/v 020/0 I

'.

WILLIE L. COVINGTON REGISTER OF DEEDS, DURHAM COUNTY

DURHAM COUNTY COURTHOUSE

200 E. MAIN STREET DURHAM, NC 27701

PLEASE RETAIN YELLOW TRAILER PAGE It is part of recorded document, and must be submitted with original for re-recording

and/or cancellation.

********************************************************.*_._ •• __ ._.* •. _ .. * •• ********-*_. __ ._-*_._*_._*---****_._*-*-*.*

Filed For Registration: 061271200712:58:54 PM

Book: RE 5658 Page: 615-634 •

Document No.: 2007029275

SEP-A 20 PGS $68.00

Recorder: JENNIFER H SMITH

2007029275

Durham CountyARGAW

NORTH CAROLINA

DURHAM COUNTY

=OR R~~IrTRRZION REGISTER OF DEEDS 6~R~~M coB~¥~ ~s;I~gn

200i MAR 07 04:4814 PM BK: 5532 PG: 232-253 FEE: $74.00

NS:$25.00 IN~rRUMm ~ L~0i(!j0L9~

CONTRACT OF SEPARATION and

PROPERTY SETTLEMENT AGREEMENT

THIS CONTRACT OF SEPARATION AND PROPERTY SETTLEMENT

AGREEMENT, (hereinafter referred to as the "Agreement") made by and between Mikael

Argaw of Durham County, North Carolina (hereinafter referred to as "Husband") and Christina

Sheahan of Durham County, North Carolina (hereinafter referred to as "Wife") ("Husband" and

"Wife" collectively are referred to hereinafter as the "Parties"), shall become effective on the

date executed by both parties hereto.

WIT N E SSE T H:

WHEREAS, the Parties were lawfully married on January 7, 1997, and lived together as

Husband and Wife until on or about November 1, 2005, at which time they separated one from

the other, and have lived continuously separate and apart; and

WHEREAS, because of unfortunate differences and incompatibilities which now exist

between them, they are no longer able to live together in peace and hallllony as husband and

wife; and

WHEREAS, the Parties have independently conferred concerning this Agreement and

both parties agree that it is entered into mutually of their own free will and with full knowledge

that either party may apply to the Court for an absolute divorce at such time as they have been

continuously separated for one year or more; and

WHEREAS, both parties stipulate and agree that they have carefully read and

() understand the terms and conditions of this Agreement, and deem them to be fair, just and ~A"u.r" .l., .

Christina )hQ"l)oJ\

~ I d l.'j "1"'1 Pd.· 'D urho.,..,.., N(. (}7703

SHEAHAN I ARGA W AGREEMENT

PAGE I

• •

equitable and in full and complete satisfaction of all claims, present or future, arising out of or in

any manner related to their marriage;

NOW THEREFORE, to that end, and for and in consideration of the mutual covenants,

promises and agreements hereinafter set forth and other good and valuable consideration, the

Parties mutually stipulate, covenant and agree as follows:

ARTICLE 1

ARTICLE 1.1 General From and after the date of this Agreement, the Parties

shall and will continue to live separate and apart, each from the other, as fully, completely and in

the same manner and to the same extent as though they had never been married.

ARTICLE 1.2 Interference The Parties each 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 party shall molest, harass, nor compel the other to cohabit or dwell with him

or her.

ARTICLE 1.3 The Parties may reside at such place or places and with

such person or persons as each of them may see fit or as each of them may desire.

ARTICLE 1.4 Visitation The Parties shall not call upon or visit the other except

by express invitation by one accepted by the other.

ARTICLE 1.5 Each of the parties may for his or her separate

benefit engage in any employment, business or profession he or she may choose. All income and

profits realized by either party shall be for his or her sole and separate use and benefit, free from

SHEAHAN I ARGAW AGREEMENT

PAQE2

any and all control, restraint or interference, direct or indirect, of the other party.

ARTICLE 1.6 The Parties shall have the right to contract and

to be contracted with independently of the other as fully and to all intents and purposes as if they

had never been married.

ARTICLE 1.7 Except as otherwise provided herein,

either party may at any time hereafter acquire, possess, encumber, transfer, conveyor otherwise

deal with any and all classes of property, real or personal, tangible or intangible, or mixed,

whether now owned or possessed or hereafter acquired by either of thenl, without the joinder of

the other party and with the same force and effect as if they were unmarried. It is agreed that all

persons dealing with the Parties hereafter may rely upon this agreement as containing all the

provisions necessary to the parties being authorized to acquire, hold, manage, transfer and

convey their real property and estate without the knowledge or consent or joinder of their spouse

as contemplated by North Carolina General Statutes § 39-13.4.

ARTICLE 2

PROVISIONS FOR PROPERTY SETTLEMENT

It is the intent and desire of the Parties to make an equitable division and partition of their

"marital property", "divisible property" and declaring their separate property as defined by

North Carolina General Statutes §50-20(b), in this property settlement. The parties hereto

specifically stipulate and agree that the settlement provided herein is fair and equitable and that

the following distribution of assets and debts is effectuated in full and complete satisfaction of

any and all claims either party may have pursuant to North Carolina General Statutes §50-20, et

seq., whether arising under any provision of the laws of the State of North Carolina or arising

under any provision of the laws of any other jurisdiction. Their property settlement and

distribution is as follows:

SHEAHAN I AROA W AGREEMENT

PAGE 3

ARTICLE 2.1

A.

1.

REAL PROPERTY.

The Marital Residence (hereinafter referred to as "the

residence") located at 1001 Alabama Avenue, Durham, North

Carolina shall be placed on the market and sold in accordance with

the procedures hereinafter stated. Wife shall be the selling realtor.

Until sale of the Residence, both Husband and Wife shall be

responsible for maintaining the Residence in good repair and

Husband and Wife shall be equally responsible for the mortgage

payment, ad valorem taxes, insurance and other expenses

associated with the Residence. They further agree to share equally

the cost of the electric and water bill until the residence is sold.

Both parties shall cooperate in every manner reasonably possible

to effectuate the sale of the Residence. In the event the parties

cannot agree as to the sales price of the Residence, each party shall

select an appraiser and the two selected shall select a third

appraiser. The Residence shall then be independently appraised by

the third appraiser. The Residence shall then be offered for sale at

the appraised value plus twelve percent (12%) and this figure shall

be the initial "asking price." The parties shall then be obligated to

accept any offer for purchase which meets or exceeds the appraised

value, and this figure shall constitute the initial "sale price." In the

event the Residence has not been sold within one hundred twenty

(120) days following the establishment of the initial "asking price"


PAOE4

and the initial "sale price", the "asking price" and the "sale price"

respectively shall each then be reduced by five percent (5%) of the

initial "sale price" and thereafter each ninety (90) days, the "asking

price" and the "sale price" shall be likewise reduced until such time

as an offer is received which meets or exceeds the then "sale

price. "

After said Residence is sold and the expenses of the sale, which

shall include the cost of any appraisal required herein, sales

commissions to wife, prorated ad valorem taxes, revenue stamps,

and other routine closing costs and the balance or balances owing

on the note or notes secured by the present outstanding deed of

trust or trusts against the residence, are paid, the net balance,

constituting the "net sales proceeds," shall be divided equally

between the parties. Initially, the parties shall attempt to sell the

property "by owner". If the property does not sell within two

months, Wife shall become the listing agent and receive a standard C~ J.'fY. iIf

realtor percentage of 9%. The listing agreement shall specify that

the property be listed on the multiple listing service for the area.

Wife shall be entitled to keep as her sole and separate property any

and all commissions from the sale of the residence.

Any and all costs, repairs or other expenses associated with the

sale of the residence shall be mutually agreed upon by both parties

and the costs shared between both parties.

This Agreement shall constitute specific authority for the closing agent

upon the sale of the Residence as hereinabove set forth to distribute the net

sale proceeds and sales commissions as specified herein.

2. If the residence does not sell within one year from the listing date,


PAGES

• • •

B.

the residence shall be rented. All rental money shall be placed in

a joint rental account. The money in the joint rental account shall

be used only for expenses related to the property, including but not

limited to, taxes, insurance, repairs, maintenance and mortgage

payments.

I. The parties are presently owners as

tenants by the entireties of real property located at 2616 W. Knox

Avenue, Durham, North Carolina (hereinafter referred to as

"2616"), 2614 W. Knox Avenue, Durham, North Carolina

(hereinafter referred to as "2614"), and 1019 Oakland Avenue,

Durham, North Carolina (hereinafter referred to as "1019"). The

mortgages associated with said properties are in both parties'

names with the exception of 1019 which is titled in Wife's name

solely. AI! of the above-referenced properties are collectively

referred to as "Wife's properties". Wife shall be entitled to

exclusive use, possession and ownership of Wife's properties and

Husband relinquishes any and all interest in Wife's properties to

Wife. After Wife assumes the mortgages, Husband shall execute

non-warranty deeds within forty-eight (48) hours of presentment

by Wife. Further, husband hereby assigns to Wife the escrow

deposit and utility deposits, if any, relative to Wife's properties.

2. As of the date of separation Wife agrees to

indemnify and hold Husband harmless from any and all liability


PAGE 6

C.

arising from any and all mortgages and deeds of trust associated

with Wife's properties, including but not limited to the following:

taxes, insurance, repairs, maintenance, assessments and any and all

obligations, claims and expenses, including reasonable attorney

fees arising out of or relating to any of the aforementioned. Wife

agrees to take steps to assume the mortgages at 2616 and 2614

within ninety (90) days of the execution of this Agreement.

Because 1091 is in Wife's name solely, Wife does not have to take

steps to assume said mortgage. Husband hereby assigns to the

Wife the escrow deposit and utility deposits, if any, relative to the

aforesaid property.

1. The parties are presently owners as

tenants by the entirety of real property located at 917 Oakland

Avenue (hereinafter referred to as "917), 915 Oakland Avenue

(hereinafter referred to as "915") and 916 Alabama Avenue

(hereinafter referred to as "916"), Durham North Carolina. All of

the above-referenced properties shall be collectively referred to as

"Husband's properties". Husband shall be entitled to exclusive

use, possession and ownership of said properties. Husband shall

assume the mortgages at 917 and 915 and shall refinance the

mortgage at 916 within ninety (90) days from the execution of this

Agreement. After Husband assumes and refinances the mortgages,

Wife shall execute non-warranty deeds within forty-eight (48)

hours of presentment by Husband. Further, Wife hereby assigns to

Husband the escrow deposit and utility deposits, if any, relative to


PAGE 7

, ..... ~ .. ,

ARTICLE 2.2

A.

2.

the aforesaid property.

As of the date of separation

Husband agrees to indemnify and hold Wife harmless from any

and all liability arising from any and all mortgages associated with

Husband's properties, including but not limited to the following:

taxes, insurance, repairs, maintenance, assessments and any and all

obligations, claims and expenses, including reasonable attorney

fees arising out of or relating to any of the aforementioned. Wife

hereby assigns to the Husband the escrow deposit and utility

deposits, if any, relative to the aforesaid property.

PERSONAL PROPERTY.

Wife's automobile. The Wife shall be entitled to exclusive ownership of

the 2000 Nissan Maxima and the Ford Van automobiles which she presently uses. Neither

vehicle has a lien. The Wife shall hereafter be solely responsible for all expenses relating to the

operation, maintenance, insuring and ownership of said vehicles. Contemporaneously with the

execution of this Agreement, the Husband shall execute any and all instrwnents or documents, if

necessary, to effectuate transfer of title to said vehicles to the Wife as provided herein. If

transfer of title is required the party or parties shall infollll the Department of Motor Vehicles

that the transfer of title is pursuant to the terms of a separation agreement.

B. Husband's automobile. The Husband shall be entitled to exclusive

ownership of the 1997 Plymouth Minivan automobile which he presently uses. This vehicle

does not have a lien. The Husband shall hereafter be solely responsible for all expenses relating

to the operation, maintenance, insuring and ownership of said vehicle. Contemporaneously with

the execution of this Agreement, the Wife shall execute any and all instruments or documents, if

necessary to effectuate transfer of title to said vehicle to the Husband as provided herein. If


PAGES

transfer of title is required the party or parties shall infOIm the Depar tment of Motor Vehicles

that the transfer of title is pursuant to the tenns of a separation agreement.

c. Each party agrees to indemnify and

hold the other harmless from all liability arising by reason of their separate operation of any of

the vehicles named above or purchased while the parties are still married. Each party shall

obtain liability insurance in their separate name for their respective vehicles and shall pay the

premiums on said policies as they become due.

D. The parties have divided most

of their household furniture and furnishings to their mutual satisfaction. There are some

remaining items in the residence that are left to be divided. Wife shall keep as her sole and

separate property the following: all kitchen items, washer, dryer, bedroom set, grandparent's

bedroom set, the desktop computer, the laptop (bob's), the printer, the digital camera, the dining

room table, the buffet table, the living room tables, the DVD player and the VCR. Husband shall

keep as his sole and separate property the following: the kitchen stools, the sofas, the computer

desk, the plasma TV and receiver, the double beds, the filing cabinet, the trailer and all tools.

The parties represent one to the other that they are capable of dividing their remaining personal

property to their mutual satisfaction.

E. Wife hereby conveys to Husband all of her right,

title and interest in and to all items of clothing, personal jewelry and articles of personal use and

adormnent presently in his possession, custody or control. Husband hereby conveys to Wife all

of his right, title and interest in and to all clothing, personal jewelry and articles of personal use

and adormnent presently in her possession, custody or control.

F. For any property not specifically

mentioned in this Agreement, the parties agree they have divided between them to their mutual

satisfaction, all other intangible personal property owned by them individually and jointly,

SHEAHAN / ARGA W AGREEMENT

PAGE 9

. "",

including but not limited to, checking and savings accounts, stocks, bonds, mutual funds, IRA's,

interests in pension and profit sharing plans, promissory notes, franchises, pat tnership and the

like. Hereafter, neither party shall make any claim against the other for any intangible personal

property in the name, possession or control of the other

ARTICLE 2.3

A.

1. Husband's retirement benefits. Husband has retirement benefits

in his name. Said benefits shall become the sole and separate

property of Husband free from any claim, right or title by Wife.

Wife relinquishes any and all interest in the same. Wife agrees to

execute any and all documents necessary to give full force and

effect to this clause.

2. Wife has retirement benefits in her

name. Said benefits shall become the sole and separate property of

Wife free from any claim, right or title by Husband. Husband

relinquishes any and all interest in the same. Husband agrees to

execute any and all documents necessary to give full force and

effect to this clause.

3. Release of Employee Benefit Plans. The parties acknowledge

and agree most pension, profit-sharing and other employee benefit

plans are subject to Employer's Retirement Income Security Act of

1974 ("ERISA"). The assignment or waiver of either party's rights

to benefits under a plan subject to ERISA is governed by the


PAGE 10

B.

ERISA and sections 401 (a) (13), 414 (p) of the Internal Revenue

Code. The parties acknowledge and agree that so long as either is

a spouse of the other, they are entitled to receive all or a portion of

the death benefits payable upon each other's death unless

consented otherwise. Therefore, each party consents in this

agreement to allow each party to designate any beneficiary either

party so desires and each party expressly waives any right to

require the payment of benefits in the fonn of a joint and survivor

annuity.

The parties have previously divided all bank accounts.

Therefore the contents of all accounts in the Husband's name shall be and become the sole and

separate property of Husband, and Wife waives, relinquishes, renounces and releases any and all

claims in and to the same. The contents of all accounts in the Wife's name shall be and become

the sole and separate property of Wife, and Husband waives, relinquishes, renounces and

releases any and all claims in and to the same. All joint accounts shall be closed. However, if

the parties rent the residence (if it fails to sell within a year), they shall open a joint account to

maintain the income and expenses from the residence.

ARTICLE 2.4

A.

DEBTS OF THE PARTIES ,

The parties represent one to the other that there are only two (2) marital

debts aside from the debt associated with an asset. The parties agree to each assume one debt as

set forth below:

1. Home Depot - Balance of $7,500.00 - Husband shall assume sole

responsibility for the Home Depot debt.

2. Lasik Plus - Balance of $2,000.00 - Wife shall assume sole responsibility

SHEAHAN I ARGA W AOREEMENT

PAGE 11

for the Lasik Plus debt.

Each party agrees to assume and pay their assigned debt above and agrees to indemnify

and hold the other haIlllless from all liability associated with the same. The parties agree they

will not seek a discharge in bankruptcy court for any joint debt they assume under this

paragraph.

B. The parties shall each be responsible for all debts incurred by them after

the date of the separation. Henceforth neither party shall charge or cause to be charged to or

against the other party any purchase. Each party warrants to the other that they have not charged

or caused to be charged any debt against the other party since the date of separation.

c. Within one hundred twenty (120)

days of the date of this Agreement, the parties shall undertake to secure the release of each other

from any and all liability for endorsements or guarantees executed by one on behalf of the other

for any business entity or debt. In the future, if an action is instituted against either party arising

out of their endorsement or guarantee on an indebtedness for which the other party is liable, they

agree to indemnify and hold each other haIlllless against any liability arising out of said action,

to include an agreement to pay reasonable attorney's fees in connection with the defense of such

action.

ARTICLE 2.5 GENERAL PROVISIONS FOR PROPERTY

A. Husband and Wife

expressly acknowledge and agree, pursuant to 0.8. § 50-20 that the division and distribution of

marital and divisible property set forth herein is just, fair and reasonable, is deemed by the

parties to be equitable, and that this Agreement shall be binding on the parties. Each party


PAGE 12

expressly waives any and all other rights, whether now in existence or acquired hereafter, to

claim an equitable distribution under the laws of this or any other state and agrees that this

provision and this Agreement may be plead in bar of such claim for relief in any suit filed

hereafter.

B. Husband and Wife grant, release,

and forever quitclaim each to the other, all right, title, interest, claim and demand whatsoever in

the real estate of which either is now seized or may hereafter become seized; and each of said

parties may from this date and at all times hereafter purchase, acquire, own, hold, possess,

encumber, dispose of and convey any and all classes and kinds of property as though unmarried

and free from the consent, joinder and interference of the other party, it being the understanding

and agreement on the part of each of the parties hereto that in the sale, transfer and conveyance

of any property hereafter it shall not be necessary in order for the grantee to have a good title,

that the other party hereto shall sign and execute to the grantee the deed, conveyance, deed of

trust, mortgage or bill of sale conveying or selling the property; it being the agreement and

covenant of the parties hereto that in this respect, each of the parties hereto has forever released

and discharged, and by these presents each does hereby now forever release and discharge the

property of the other from all claims, interest and estate on his or her part, and that each shall be

in the same position as if such party were single and unmarried.

c. Sale of Property. In the event of a sale, transfer, or conveyance of any

real or personal property now owned or hereafter acquired by either of the parties,

(notwithstanding the mutual releases contained in this Agreement) if either party to this

Agreement is called upon to execute a deed, conveyance, bill of sale or other instrument

conveying said property, then the party called upon will sign any such instrument which may be

reasonably required or reasonably necessary to perfect title in the guarantee of the property

which is sought to be conveyed.


PAGE 13

" ....

D. Except as otherwise expressly

provided for in this Agreement, Husband does hereby waive, release, discharge, quitclaim and

renounce unto the Wife and her heirs and assigns, and Wife does hereby waive, release,

discharge, quitclaim and renounce unto Husband and his heirs and assigns:

E.

I. All and every right to share in the estate of the other party upon

said party's death as provided in G. S. § 29-14, or otherwise, now

and hereafter by law provided

2. All and every right to elect to take a life estate in real estate upon

the death of the other party in lieu of the share provided in G. S. §

29-14, as provided in G. S. § 29-30, or otherwise, now and

hereafter by law provided

3. All and every right to a year's allowance upon the death of the

other party as provided by G. S. § 30-15, or otherwise, now and

hereafter by law provided

4. All and every right to petition for an elective share as provided by

N.C.G. S. § 30-3.1 et seq., or to otherwise dissent from the Last

Will and Testament of the other; and

5. All and every right to administer upon the estate of the other party

as provided by G. S. § 28A-4-1, or otherwise, now and hereafter by

law provided.

Subject to the rights and privileges provided for in this

Agreement, in any deed or other instrument executed contemporaneously or in connection

herewith, and in any order or judgment entered contemporaneously or in connection herewith,

each party does hereby release and discharge the other from all causes of action, claims, rights or

demands whatsoever, at law or in equity, which either of the parties ever had or now has against

the other, known or unknown, by reason of any matter, cause or thing up to the date of the

execution of this Agreement, except the cause of action for divorce based upon the separation of


PAGE \4

the parties. It is the intention of the parties that henceforth there shall be, as between them, only

such rights and obligations as are specifically provided for in this Agreement and the right of

action for divorce.

F.

Husband and Wife expressly waive any right, claim or benefit (including an appointment as

personal representative, a bequest or a devise) under any existing Will of the above. Husband

and Wife further agree upon the death of the other they agree to execute such other and further

documents including documents of renunciation as may be reasonably required to give full force

and effect to this Agreement.

G. In the event of

reconciliation and resumption of the marital relationship between the parties, the provisions of

this Agreement for settlement of property rights shall nevertheless continue in full force and

effect without abatement of any telm or provision hereof, except as otherwise provided by

written agreement duly executed by each of the parties after the date of the reconciliation.

H. The parties hereto

acknowledge that the transfer of property under the Property Settlement Provisions of this

Agreement (Article II) is related to the divorce, is a transfer incident to divorce and is related to

the cessation of the marriage; (ii) that the intent and purpose of this Agreement is for the transfer

of property under the Property Settlement provisions of this Agreement (Article II) to be tax free

pursuant to § 1041 of the Internal Revenue Code and the applicable provisions of North Carolina

law and for no gain or loss to be recognized by either party as a result of such transfer; and (iii)

that they will file a formal election if necessary or otherwise take such actions as may be

required by applicable provisions of the state or federal income tax law and regulations to give

full force and effect to their aforesaid intent and purpose.


PAGE 15

-,."

ARTICLE 3

ARTICLE 3.1 Waiver of Alimony. Each party does hereby forever

waive any and all rights - past, present and future- which either party may have against the other

for post separation support, alimony and any and all other claims for support and maintenance

which the parties may have by reason of their marriage.

ARTICLE 4

GENERAL PROVISIONS

ARTICLE 4.1 Nothing herein

contained shall be deemed to prevent either of the parties from maintaining a suit for absolute

divorce against the other based on the ground of separation as provided by law; however, the

rights and obligations hereunder shall survive such divorce, regardless of who obtains or

petitions for said divorce. The parties further agree that this Agreement will not be incorporated,

by reference or otherwise, in any final judgment of divorce.

ARTICLE 4.2 The parties shall file joint federal and state tax

returns for the 2006 tax years. Thereafter, the parties shall file separate tax returns. The parties

agree to share evenly any tax refund and/or liability associated with joint filing so long as neither

party has engaged in abnolIllal activity such as removing funds from a retirement account. If

either party has engaged in abnolIlIal activity, said party shall be responsible for any tax

associated with said activity.

ARTICLE 4.3 Each party does

hereby release and discharge any third party from all causes of action or claims for alienation of

affection, criminal conversation, or similar tort related to or arising out of any relationship


PAGE 16

between such third party and the other party. Each party does hereby covenant and agree that he

or she will not institute or pursue such an action or claim against any third party, and that such

institution or pursuit would constitute a material breach of this Agreement. Further, any such

third party is deemed to be a beneficiary of this Agreement, and the provisions of this Agreement

may be pleaded by such third party in total and absolute bar of such an action or claim.

ARTICLE 4.4 This Agreement is not an agreement between the

parties to obtain a divorce. This is an agreement settling their property and marital rights.

ARTICLE 4.5 It is expressly understood and agreed that in the

event anyone or more of the provisions of this Agreement shall be unenforceable for any reason,

the remaining portions of this agreement shall, nevertheless, remain in full force and effect, and

the unenforceable provision or provisions shall be deemed deleted.

ARTICLE 4.6 Each of the parties shall from time-to-

time, at the request of the other, execute, acknowledge and deliver to the other party, any further

instruments that may be reasonably required to give full force and effect to the provisions of this

Agreement.

ARTICLE 4.7 This Agreement can be altered and amended only

by further written agreement duly executed by the parties. Any failure by either party to

specifically perform or to enforce perfolmance exactly according to the letter of this Agreement

shall not constitute an alteration of the same by way of enlargement, waiver, reduction, estoppel,

or otherwise, unless confirmed in writing by the parties.

ARTICLE 4.8 This Agreement shall be construed and governed in

accordance with the laws of the State of North Carolina.


PAGE 17

., ..

ARTICLE 4.9 Except as otherwise stated herein, all the

provisions of this Agreement shall be binding upon the respective heirs, estates, next of kin,

executors, administrators, and assigns of the parties.

ARTICLE 4.10 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.

ARTICLE 4.11 Interpretation. No provision of this Agreement shall be

interpreted for or against any party because that party, or the party's agent or legal

representative, drafted the of the particular provision, and the parties hereby

unconditionally waive such defense or claim regarding this Agreement. This stipulation may be

used in Court regarding any claim or defense based upon this Agreement.

ARTICLE 4.12 Each of the parties acknowledge that they have

read this agreement and understand its contents and provisions; that it is a fair and reasonable

agreement to each of them, having due regard to the conditions and circumstances of the parties

hereto on the date hereof; that each has signed and executed the Agreement freely and

voluntarily and without fear, compulsion, duress, coercion, persuasion or undue influence

exercised by either party upon the other or by any person or persons upon either.

ARTICLE 4.13 Wife is represented by

Rose D. Mackritis to prepare and advise Wife about the provisions of this Agreement and it legal

effect. Husband has chosen not to obtain legal counsel and fully understands that Wife's attorney

cannot represent Husband's interest but can only represent Wife. Wife acknowledges that

Husband has not received any advice from Wife's attorney and is representing Wife during the

negotiation and signing of this Agreement.


PAGE 18

ARTICLE 4.14 If either Husband or Wife shall seek a

discharge in bankruptcy from claims of creditors on debts that Husband or Wife has assumed and

has indemnified and held the other party hannless as part of the property settlement, the Husband

or Wife shall notify the other party within five (5) days of filing bankruptcy, and the other party

shall be allowed to bring an action in bankruptcy court seeking a finding that the debts are

nondischargable under the scope of the Bankruptcy Code.

ARTICLE 4.15 Specific Performance. Either party shall have the right to compel

the perfonnance of the provisions of this Agreement by suing for specific perfonnance in the

courts where jurisdiction of the parties and subject matter exists. Both parties acknowledge that

neither party has a plain, speedy or adequate legal remedy to compel compliance with the

provisions of this Agreement, that neither party shall be required to repeatedly file suit for any

breach of this Agreement, that this Agreement is fair and equitable to both parties and that an

order of specific performance enforceable by contempt is an appropriate remedy for a breach by

either party.

ARTICLE 4.16 If either party defaults in the

performance of his or her obligations under the terms hereof, the other party may employ an

attorney to enforce his or her rights and remedies thereunder. In such event, the party who is in

breach or default shall pay to the other party reasonable attorneys fees plus all other reasonable

expenses incurred by such other party in exercising his or her rights and remedies upon default.

ARTICLE 4.17 Recordation of Agreement. This Agreement shall not be

recorded without the independent and express written consent of both parties. A Memorandum

of said Agreement written in accordance with the terms of North Carolina General Statutes, §39-

13.4 shall be executed by either party upon request of the other party and said Memorandum of

Agreement may be recorded in any recording office at any time. The purpose of the recording of


PAGE 19

-...

a Memorandum of Agreement is to allow the transfer of property pending a divorce action. Any

Memorandum of Agreement shall not contain the details of financial provisions of this

Agreement.

IN WITNESS WHEREOF, the parties have signed, sealed and acknowledged this

Agreement in duplicate originals, on the day and year subscribed below.

Date: 21:< 7/ t?7 ~ .

(SEAL)

Date: .y lal 0 1 (SEAL)

STATE OF NORTH CAROLINA

COUNTY OF Ovrh..""

Mikael aw

Ii • • , i . -

Christina Sheahan

I, ~'bert- (S ere •. J/", , a Notary Public of said County and State do hereby certify that Mikael Argaw personally appeared before me this date and acknowledged the due execution of the foregoing Separation Agreement and Property Settlement for the purpose therein expressed.

",,;,;'w.i.W,~ss my hand and notarial seal this the )...7 " . B Cf? '. ,,'0""1\ t::- ""

,"/.'(' . . ... 1:';;., " '1(';' ,-,,>t. ,'/\', ~ 0· v,.,. •

:'0'1 \ ....

day of--=-f_ • .::.b:.:u"V~~ __ ~, 2007.

{4: ~O i A R r ~ j , ' ,-.

'd ···c· u'; Notary Public Signature

\G PUB \.\:,: <>' .~. . '.

····;·~!~f ;6~~~"~': . MyCommrsslOn Expires: fA<lr0~ ~)).o If

Notary Public Printed Name

Form ofIdentification: --!:rv:.::<--~~O.!:L:......... ___ _


PAGE 20


COUNTY OF W"lroyvl

I, fJ.rdKo. MOYlrc') , a Notary Public of said County and State do hereby certify that Christina Sheahan personally appeared before me this date and acknowledged the due execution of the foregoing Separation Agreement and Property Settlement for the purpose therein expressed.

notarial seal this the r day of r-<::::-b-rUCJ. vy ,2007 . • • • • • •

;' ~OTARy ". • • • • • • •

0' .• "'UBUC, .;c.i ~ ". ..'~' ~;; co'u~~'"

Public

My Commission Expires: "6 - 2: 'J - '2C:>IO Notary Public Printed Name

Form ofIdentification: ...!to=c..=O=<...::::L=--___ _


PAGE 21





and/or cancellation. ************************************************************************************************************************

Filed For Registration: 03/07/200704:48:14 PM

Book: RE 5532 Page: 232·253


SEP·A 22 PGS $74.00

NS: $25.00

Recorder: SHARON M CEARNEL

2007010298

Durham CountyDE LEON

•

•

r

FOR RE~IlSlTRATL10~O~~~~~~~R OF DEEDS loll le. NC DURHAM COUNTY. •

200B JUN 1003:31:41 p" BK59B1 PG266-2B4 FEU65.00

lNS\RU~tN\ ~ 2~0e02~e29

Return To: Dana L. DeLeon, 4132 Cobblestone Place, Durham, NC 27707

Carlos

•

•

•

• . '..... . , . . ...

.:)- , •

• •

• •

NORTH CAROLINA

DURHAM COUNTY

MEDIATED SEPARATION AND PROPERTY SETTLEMENT AGREEMENT •

THIS AGREEMENT made this 'J.{h~ day of '--='---"----: _ 2008, between Juan

Carlos De Leon of Durham County, North Carolina, hereinafter referred to as the "Husband,"

and Dana Lynn Kirvan De Leon of Durham County, North Carolina hereinafter referred to as

the "Wife":

WITNESSETH:

THAT WHEREAS, the parties hereto were married on October 8, 1995 and certain

differences have arisen between them rendering it undesirable for them to continue to live

together as Husband and Wife, and in consequence of these differences they plan on separating

or about March I, 2008 and thereafter live separate and apart with the intention to remain

separate and apart; and

WHEREAS, each of the parties is more than eighteen (18) years of age, and desires to

confirm their separation and to make agreements in connection therewith, including the

•

settlement and adjustment of their property rights and other rights, responsibilities and

obligations growing out of their marital relationship; and

WHEREAS, there was one child adopted by the parties', namely, Dylan Taylor De Leon,

born June 17,2003.

WHEREAS, after mature consideration and judgment, neither party was represented in

the preparation of this Agreement by an attorney but has had the opportunity to seek independent

representation. Both parties hereby acknowledge they have willingly, knowingly and voluntarily

entered into this Agreement, after careful consideration without any coercion or undue influence

De Leon Mediated Separation and Property Settlement Agreement Page 1

• • •

, I

•

from each other or any third party. Each party believes it is in his or her own best interests to

enter into this Mediated Separation and Property Settlement Agreement and each party hereby

enters into this written agreement and fully understands the terms, conditions and provisions

hereof, and deems such terms to be fair, just and reasonable and equitable;

NOW, THEREFORE, in consideration of the premises, the mutual promises and

undertakings herein contained and for other good and valuable consideration, the receipt of

which is hereby acknowledged, each party stipulates, agrees and covenants with the other as

follows:

I. SEPARATE MAINTENANCE. Husband and Wife shall at all times hereinafter live

separate and apart, each free from the marital control and authority of the other, direct or

indirect, as if each were single and unmarried; and shall reside at such place or places and with

such person or persons as each may desire; and shall conduct, carry on and engage in any

employment, business, trade or profession each may desire, choose or deem fit. Except as

otherwise provided herein, all income and profits realized by either party shall be for his or her

sole and separate use and benefit, free from any and all control, restraint or interference, direct or

indirect, of the other party.

2. COVENANT OF NON-INTERFERENCE. Neither party will, in any manner, molest

or interfere with the personal rights, liberties, privileges or affairs of the other, and each shall

henceforth live his or her own personal life as he or she may see fit, unrestricted in any manner

by the marriage and relationship previously existing between them. Specifically, neither party

shall come onto the residential premises of the other without express prior permission from the

other party.


•

• • •

, •

3. SUBSEQUENT PROPERTY TRANSACTIONS. Except as otherwise

provided herein, either party may at any time hereafter acquire, possess, encumber,

transfer, conveyor otherwise deal with any and all classes of property, real or personal,

tangible or intangible or mixed, whether now owned or possessed or hereafter acquired

by either of them, without the joinder or consent of the other party and with the same

force and effect as if they were unmarried. Ifit shall become necessary to pass, transfer

or guarantee good title, a party shall, upon request of the other, execute any deed, bill of

sale or document evidencing a conveyance of property. It is agreed between the parties

that each of them will at any time or times hereafter make, execute and deliver any and

all of such other and further assurances as either of said parties shall reasonably require

for the purposes of giving full effect to these agreements. The party requested to execute

such document shall incur no liability or expense.

4. RELEASE OF PROPERTY AND ESTATE RIGHTS. Except as otherwise

set out specifically in this Agreement, each party waives and gives up all claims against

the other and all right, title and interest (at present or in the future) as to:

A. The estate of the other, including but not limited to statutory rights,

elections, allowances and the right to act as administrator or executor of

the other's estate.

B. Any right of inheritance under a will executed by the other party prior to

the date of this Agreement.

C. Any beneficial or administrative right arising under any trust created by

the other party prior to the date ofthis Agreement.


•

• • •

- ,

D. Any right to insurance proceeds or other benefits payable by reason of the

death or disability of the other party.

E. Any right to insurance proceeds payable by reason of damage or

destruction to any real or personal property owned separately by the other

party, whether such property is distributed under this Agreement or

acquired before or after the execution of this document by the other party.

5. DEBTS.

A. Present Debts. As of the date of this Agreement, the parties have no joint

marital debt. The Wife will have sole and separate responsibility for any debts in

her name alone, free from any claim or right of Husband, including but not

limited to any lines of credit on any accounts in her sole and separate name. The

Husband will have sole and separate responsibility for any debts in his name

alone, free from any claim or right of Wife, including but not limited to any

Checking Account lines of credit on Husband's checking account in his sole and

separate name.

B. Future Debts.

Unless otherwise provided herein, neither party shall hereafter charge or

cause or permit to be charged to or against the other any purchase which either of

them may hereafter make, and shall not hereafter create any obligations in the

name of or against the other and shall never hereafter secure or attempt to secure

any credit upon or in connection with the other, or in his or her name. It is

specifically understood and agreed that all debts incurred by either ofthe parties


• •

. , •

• •

•

subsequent to the date of separation shall be the sole and separate responsibility of

the party incurring such indebtedness.

6. INCOME TAX RETURNS.

A. Tax Year 2007. The parties agree to file joint State and Federal Income Tax

Returns for the tax year 2007. The parties further agree that any resulting State or

Federal Income Tax refund or liability shall be equally divided between the

parties.

B. Tax Years 2008 and All Subsequent Years' Income Tax Returns. The parties

agree to file separate State and Federal Income Tax Returns for tax years 2008

and all subsequent years. The parties further agree that any resulting State or

Federal Income Tax refund or liability shall be the sole and separate property or

responsibility of the party filing said returns.

C. Dependency Exemption. For the tax year 2008 and all subsequent years, the

parties agree that Wife shall be entitled to claim the minor child as an exemption

for her Federal and State income tax purposes.

D. Mortgage Interest Deduction. For the tax year 2008 and all subsequent years,

the parties agree that Wife shall be entitled to claim any and all mortgage interest

as a deduction that may be due for Federal and State income tax purposes.

7. PROPERTY DIVISION AND SETTLEMENT.

A. Marital Home. The parties own a home located at 4132 Cobblestone

Place, Durham, North Carolina 27707 (hereinafter referred to as the "Marital

Home"), which is encumbered by a mortgage with National City Bank and a

second mortgage with Aluminum Company of North Carolina. Husband agrees to

De Leon Mediated Separation and Property Settlement Agreement PageS

•

, ,

, ,

, ,

,

move from the Marital Home on or before March I, 2008, Wife shall continue to

reside in the Marital Home and shall be entitled to exclusive use and possession of

said Marital Home, Wife shall be responsible for all costs associated with the

Marital Home including the mortgage, second mortgage, and debts associated

with repairs to the Marital Home, taxes, insurance, and maintenance,

As soon as possible, but not to exceed six months unless otherwise agreed,

Wife agrees to refinance both the first and second mortgage on the Marital Home

to remove Husband's name from the liability on the indebtedness, At the time of

the refinance, Husband shall transfer his interest to Wife by way of a North

Carolina Warranty Deed to remove his name from the deed to the Marital Home,

B. Lump Sum Payment. On or before February 28, 2008, Wife shall pay to

Husband a lump sum distribution of $40,000,00, representing his share of the net

equity in the Marital Home and all other marital property owned by the parties but

retained by Wife as her sole and separate possession,

C. Household Furnishings and Other Personal Property. The parties have

previously mutually agreed upon the division of personal property, Husband shall

remove some of his personal items and furnishings from the Marital Home on or

before March I, 2008 and shall further take said items as his sole and separate

property. As far as the remainder of Husband's personal items and furnishings,

Husband is allowed to continue to keep said items at the Marital Home as long as

mutually agreed between the parties. Wife shall take all furnishings and personal

property in her possession as her sole and separate property.

,


•

•

• •

• •

•

D. Vehicles.

(l) Wife. The Husband hereby transfers, assigns and relinquishes unto

the Wife any and all of his right, title and interest of the 1993 Nissan

Sentra. After the execution of this Agreement said vehicle shall belong

solely to the Wife, free from any claim or right of the Husband. Wife

shall be responsible for any and all costs associated with the vehicle

including car payments, taxes, insurance, and maintenance.

(2) Husband. The Wife hereby transfers, assigns, and relinquishes unto

the Husband any and all of her right, title, and interest in the 1998 Toyota

4Runner. Said vehicle shall belong solely to the Husband, free from any

claim or right of Wife. Husband shall be responsible for any and all costs

associated with the vehicle including car payments, taxes, insurance, and

maintenance.

(3) Transfer of Title. Either party shall, upon the request of the other

party, execute and deliver to the party such instruments or documents as

may be necessary or appropriate to effectuate the transfer of title to the

aforesaid vehicles.

(4) Negligent Operation. Each party agrees to indemnifY and hold the

other harmless from all liability arising by reason of their separate

operation of any of the aforesaid vehicles.

E. Bank Accounts. Wife shall retain as her sole and separate property any

and all bank accounts in her sole name free from any claim or right of Husband.


• • •

• •

•

Husband shall retain as his sole and separate property any and all bank accounts

in his sole name free from any claim or right of Wife.

F. Retirement. Husband shall take as his sole and separate property any and

all retirement and supplemental retirement including 401 (k) accounts received

from his past, present or future employment free from any claim or right of Wife.

Wife shall take as her sole and separate property any and all retirement and

supplemental retirement including 401(k) accounts received from her past, present

or future employment free from any claim or right of Husband.

G. Pets. The parties have three (3) dogs, one (I) baby lovebird, three (3) cats

and seven (7) birds. Husband shall keep as his sole property the three (3) dogs

and one (1) baby lovebird, free from any claim or right of Wife. At this time,

however, the Husband does not have a home that would allow him to have

physical possession ofthe dogs. Wife agrees to allow Husband to leave the dogs

with her until such time as the parties mutually agree otherwise. Husband shall be

responsible for all food and veterinarian costs associated with the dogs while they

remain in the Wife's home. Wife agrees to assume temporary day to day care of

the dogs, but will allow Husband to come visit and/or take the dogs upon

reasonable notice and at reasonable times. Wife shall keep as her sole property the

three (3) cats and seven (7) birds, free from any claim or right of Husband. The

parties agree that Wife shall keep the dogs whenever Husband is unable to do so.

8. CHILD CUSTODY. The parties agree that it is in the best interest of the minor

child that Husband and Wife share joint legal custody of the child with Wife

De Leon Mediated Separation and Property Settlement Agreement PageS

•

• • •

• ' . retaining primary physical custody, the Husband having secondary physical

custody and the child residing primarily in the home of the Wife.

The parties recognize that they intend to be flexible with one another and

will try work together to accommodate the wishes of each other and the child.

Both Husband and Wife intend to maintain residence in Durham. If a move

becomes imminent for either party, said party will notifY the other as soon as

possible. The parties agree to reevaluate the issues of physical custody and

visitation, and mediate these issues if they cannot reach mutual agreement.

9. CHILD'S WELFARE.

A. Care & Support of Parental Relationship. The parties agree that each party is

an integral part of the minor child's life, and it is in the best interest of the

minor child to continue to have close and frequent contact with both parties.

Parties specifically agree that the care and welfare of the minor child shall be

their joint responsibility. Both parties shall at all times encourage and foster

in the child sincere respect and affection for both parents. Neither party shall

attempt, or condone any attempt, to estrange the child from the other party or

to injure or impair the natural love and affection between parent and child.

Parties agree to respect each other's parenting style, privacy, and authority.

Parties agree that the child shall have unlimited freedom to communicate with

the other parent. In the event of the death of either party, the surviving parent

will continue to facilitate and foster a relationship between the minor child

and the deceased parent's extended family. Both parties recognize that their

respective contribution to the welfare of the minor child is essential; therefore,


•

•

• •

•

parties agree to cooperate with the other in establishing mutually acceptable

guidelines and standards for development, education, and health. Neither

party will make an arrangement or commitment that will involve the other's

time, effort, or expense without first obtaining agreement from the other party.

B. Notification & Contact Information. Parties agree to provide the other

with an address and phone number where he or she can be reached. Whenever

one parent is taking the children over night, that parent will notify the other parent

and provide himfher with a telephone number through which the child may be

reached. Unless otherwise agreed, Husband shall not take the minor child out of

town.

C. Communication Regarding the Child. The parties shall consult together

and attempt to reach a mutual agreement concerning the minor child's education,

medical, dental or psychological treatment, any extracurricular activities, and any

other major decisions affecting the welfare of the child. The day-to-day decisions

involving the minor child shall be the responsibility of the parent in residence.

Parties agree to regularly discuss the needs and progress of the minor child, and

whenever appropriate, to consider the wishes of the minor child when decisions

are made regarding their times and activities with both parties.

D. Information Regarding the Child. Parties agree to infonn the other of

significant events during the time the minor child is with him or her at the time

the child changes residence. Each party shall immediately advise the other as to

any serious illness or other major development with respect to the child. The


•

•

\

parties agree to provide the other with access to any educational or medical

correspondence.

E. Parental Involvement. Both parties are permitted to attend teacher

conferences as desired and to be active in school events as their respective

schedules permit. Both parties are free to attend the minor child's activities even

ifthe child is not residing with the parent at that time.

10. CHILD SUPPORT. The parties recognize that given the custodial situation and

respective incomes, a certain amount of child support would normally be paid by

Husband to Wife pursuant to the North Carolina Child Support Guidelines. However, at

this time, the parties anticipate that they will reassess the child support obligation in the

future and will return to mediation they cannot agree. The parties desire to share the

expenses of the minor child in a manner other than that prescribed by said Guidelines.

Thus, Husband and Wife agree to each pay one-half of the minor child's child care.

II. MEDICAL INSURANCE FOR THE MINOR CHILD. Wife shall continue to

maintain medical and hospitalization insurance for the minor child. Both parties agree to

evenly split all uninsured medical costs for the minor child.

12. EQUITABLE DISTRIBUTION. This Agreement is the act of the Husband and

the Wife in equitably dividing their property as provided Utlder N.C.G.S. § 50-20(d).

Each releases the other from any further claim which would or might arise in favor of

either under N.C.G.S. §50-20, ~ seq., or any other state or federal law involving division

of property acquired during marriage.

13. FINAL SETTLEMENT. It is the intent of the parties that this Agreement

constitutes final settlement of all rights and interest arising from the marriage of the


•

• •

• • •

parties, including a final settlement of marital property, and each party acknowledges that

the settlement herein provided for is deemed to be an equitable settlement and

distribution in lieu of the provisions of General Statute § 50-20, and expressly releases

and waives any claims arising thereunder. In addition thereto, each party releases the

other from duties and obligations of support and maintenance, including attorney fees

except as herein provided, and each party understands that this agreement may be pleaded

in bar of any right or claim arising from the marriage between the parties.

14. TRANSFERS OF PROPERTY INCIDENT TO DIVORCE. The parties agree

that (i) the transfer of property hereunder is related to the divorce; (ii) that the transfer

hereunder is a transfer incident to the divorce; (iii) that the intent and purpose of this

Agreement is for the transfer of property hereunder to be tax free pursuant to § 1041 of

the Internal Revenue Code and the applicable provisions of North Carolina law and for

no gain or loss to be recognized by either party as a result of such transfer; and (iv) that

they will file a fOImal election if necessary or otherwise take such actions as may be

required by applicable provisions of the state or federal income tax law and regulations to

give full force and effect to their aforesaid intent and purpose.

IS. MEDIATION. It is the parties desire to resolve the issues arising out of their

marriage amicably, and they will continue to negotiate the resolution of these issues

through their mediator. With the exception of actions to enforce this Agreement, the

parties further agree to submit to mediation regarding these issues prior to filing action

actions with the Court.

16. WAIVER OF ALIMONY AND POST SEPARATION SUPPORT. Each

party hereby waives all claims and demands against the other for post separation support


•

• • •

' ..

and alimony, including allowances for attorney's fees and suit money which either now

has or may hereafter have or may in any way be or become entitled to by reason of their

marriage to one another. The parties agree that this settlement is a total and complete

release of each party by the other of all such matters and charges whatsoever except as

herein otherwise provided.

17. RECONCILIATION. In the event the Husband and Wife end their separation

by reconciliation and resumption of marital cohabitation, the executory provisions of this

Agreement shall be thereby canceled and rescinded, but all provisions hereof which have

been executed or partially executed at that time, shall, to the extent of complete or partial

perfOimance, continue in full force and effect unless and until they are canceled or

rescinded in a written agreement duly executed by both Husband and Wife. The parties

acknowledge, however, that the provisions contained above with regard to the division of

both real and personal property shall be deemed fully executed at the time this Agreement

is signed by both parties and shall not be affected by a reconciliation of the parties. The

property transferred and assigned pursuant to the property settlement provisions of this

Agreement shall remain the separate property of the parties as stated herein.

18. INCORPORATION. The parties agree that this Agreement in its entirety may

be incorporated into a judgment of absolute divorce upon the application of either party.

19. DIVORCE OR DISSOLUTION OF MARRIAGE. It is agreed and understood

by the parties that this Agreement is not made for the purpose of facilitating a divorce

between the parties nor is there any agreement that either party shall not defend against

any action for divorce or proceeding for dissolution of the marriage brought by the other

party; but this Agreement is made without prejudice to the right of either party to seek a


•

• •

• ' .

divorce or dissolution of marriage and the provisions hereof shall remain in full force and

effect whether or not either party seeks a divorce or dissolution of marriage at any time

hereafter.

20. PREPARATION OF AGREEMENT AND REPRESENTATION. Both

Husband and Wife acknowledge that Paul Brock of Brock, Payne & Meece, P.A. served

as an independent f,unily law mediator in this matter and prepared this Agreement based

on the terms reached and consented to by both parties. Paul Brock did not provide

separate legal advice to either party and both Husband and Wife acknowledge they had a

right to consult with an attorney of their own choosing, but each waived their right to do

so. Each party acknowledges they may be waiving some oftheir legal rights and their

right to further information and advice, but have nonetheless agreed to the terms set forth

herein knowingly, willingly and without any undue influence or duress. Paul Brock

further did not provide any specific advice as to tax implications of this Agreement and

both Husband and Wife acknowledge they have a right to consult with an accountant or

other tax professional if they have tax questions.

21. COVENANT OF FULL DISCLOSURE. Each party covenants with and

represents to the other that he or she has made a full and fair disclosure of all property

and interests in property owned or believed to be owned by him or her.

22. ENFORCEMENT. If either party fails in the due performance of his or her

obligations hereunder, in addition to any other remedy that may be available to him or her

at law, either party shall have the right, at his or her election, to sue for specific

performance of this agreement. The breaching party shall pay the costs of any such legal


•

• • •

• "

remedies, including a reasonable attorney's fee. Nothing herein contained has been

construed to restrict or impair either party's right to exercise this election.

23. INTEGRA TED AGREEMENT. The parties agree that the provisions ofthis

Agreement are fully integrated. Each and every provision is reciprocal consideration for

every other provision, and thus the provisions of this Agreement are intended to be non

modifiable by the Court.

24. ADDITIONAL INSTRUMENTS, Each of the parties shall from time to time at

the request of the other execute, acknowledge and deliver to the other party all further

instruments that may be reasonably required to give full force and effect to the provisions

of this Agreement.

25. MODIFICATION AND WAIVER. The 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

perfOlmance 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.

26. SITUS. This Agreement shall be construed and governed in accordance with the

laws of the State of North Carolina.

27. BINDING EFFECT. Except as otherwise stated herein, all the provisions of this

Agreement shall be binding upon the respective heirs, next of kin, executors and

administrators of the parties.

,


•

•

•

• . ' .

IN WITNESS , the parties have hereto set their hand and seals in

duplicate originals, each of which shall constitute an original, as of the day and year first

above written.

..",~ '---_ (SEAL) VANDE

. ~c ==::....='----=~ ~(SEAL) AN CARLO~S DE LEON


,

-• - '-


COUNTY OF DURHAM

I, _--1.l.LC,&t",,-,-,,' OJ'f-'-V1-'-'lli"'· .... w"-"'-"'-Ol..""vt'-"-l_s: __ , a Notary Public, do hereby certify that

DANA L. KIRV AN DE LEON personally appeared before me this day and

acknowledged the due execution of the foregoing Mediated Separation and Property

Settlement Agreement.

WITNESS my hand and notarial seal, this the () day of\ckvu.a.~008.

My Commission Expires:

lOISOY


COUNTY OF DURHAM

,

,

NOTARY

LEIGH EDWARDS NOTARY PUBL~ O' NF:-:~~ROUNA

COUN I'

1,_ J':...I.....bM!'0'J.;,l."::i~~ __ , a Notary Public, do hereby certify that

JUAN CARLOS DE LEON personally appeared before me this day and acknowledged

the due execution of the foregoing Mediated Separation and Property Settlement

Agreement.

WITNESS my hand and notarial seal, this the & day of


NOTARY PUBLIC

LEIGH EDWARDS NOTARY PUBLIC· NORTH CAROLINA

COUNTY OF DURHAM

De Leon Mediated Separation and Property Settlement Agreement

,2008.

Page 17



200 E. MAIN STREET

DURHAM, NC 27701


and/or cancellation. **************************************.*********************************************************************-**_._._----

Filed For Registration: 06/10/200803:31 :41 PM

Book: RE 5981 Page: 266-284


SEP-A 19 PGS $65.00


2008023829 ,

, , , • • , , •

Durham CountyDE PAZ

, ,

, ' , .

NORTH CAROLINA

FOR R~rISITRRLTION R~GISTER OF DEEDS Ie . CovIngton

DURHRM COUNTY NC 2007 SEP 26 1157 48 AM

BK.5753 PG. 504-522 FEE. $65.00 N5.$25.00

, lN~rR~MENr ~ 2~~/~m~8

ORANGE COUNTY PROPERTY DIV SION AND SEPARATION AGREEMENT

f~--f~"1) ~f' l,.\S . ~~H-~5 'R' 1 t:::) tA:: TO', Llt-.l~l~ v\I, )e I kri~e\ f>r:\ {..W

IS roperty Division and Separation Agree ent, made and entered mto as of this ~day of1»COMi Q!ft i 1 , 2006, by and between Erika W. DePaz, the party of the first part, hereinafter called Wife, a resident of Orange County, North Carolina, social security number , and Roberto A. DePaz, the party of the second part, hereinafter called Husband, a resident of Orange County, North Carolina, social security number ,

•

. WITNESSETH:

WHEREAS, the parties hereto were lawfully married to each other on or about May 27, 2000, in Richland County, South Carolina, and lived together as Husband and Wife until on or about

. .

July 1,2006, at which time they intend to separate one from the other with at least one of the parties intending to continuously live separate and apart; and

WHEREAS, there was one (I) child born of the marriage of the parties, namely. Savannah Catherine DePaz, born October 13, 2003, social security number ; and

WHEREAS, various unfortunate and unhappy difficulties, disputes and differences have arisen between the parties, as a result of which they are no longer able to live together in peace and harmony, and it is, therefore, necessary for the health, happiness and well-being of both parties that they shOUld continue to live separate and apart from each other; and

WHEREAS, the parties mutually have decided and agreed to live separate and apart for the remainder of their natural lives, terminate the marriage relationship, and each go her or his way unmolested by the other, both understanding and agreeing that either party may apply to a court of competent jurisdiction for an absolute uncontested divorce at such time as the parties have continuously separated for one year or more on the grounds of mutual separation ofthe parties; and

WHEREAS, the said parties desire to enter into this Property Division and Separation Agreement (hereimifter "this Agreement") for the purpose of confinning their mutual separation, settling their property rights, and making arrangements in connection therewith; and

WHEREAS, both parties fully understand the terms, conditions and provisions of this Agreement, and believe and agree that the same are just, fair, adequate and reasonable in all respects;

NOW, THEREFORE, to that end, and for and in consideration of the mutual covenants, promises, and agreements herein declared and set forth, the parties hereto agree as follows.

I. SEP ARA TI 0 N: From and after the date of this Agreement, both parties shall henceforth live wholly separate and apart from each other, and it shall be lawful for each to live separate and apart from the other and to continue to so live and reside and associate from time to time, at such place or places, with such person or persons, as either such party shall see fit, as if such

-

•

• •

.. ,

parties were sale and unmarried; and to conduct, carry on, and engage in.any employment, trade or business as either party may deem fit, all for the separate use and benefit of such party, and all free from any control, restraint, authority or interference, directly or indirectly, by the other, in all respects, as if such parties were sale and unmarried; and further, each party will contract in the future, and be contracted with, independent of the other, and neither party shall be liable for any debts or obligations incurred by the other, nor shall either party contract any debt for which the other shall be liable.

, 2. NON-MOLEST A nON: Neither party shall molest or bother the other, directly or indirectly, nor compel, nor attempt to compel the other to cohabit or live with her or him in any way whatsoever, nor shall either interfere in any way with the other's right to live at such place or places as she or he shall see fit, or with such other person or persons as she or he shall see fit.

3. RELEASE OF PROPERTY AND ESTATE RIGHTS:

(a) The Wife, for herself, her heirs, executors, administrators, and assigns, hereby releases and relinquishes unto the Husband, his heirs, executors, administrators, and assigns, all right of future support, all right of dower, inheritance, descent and distribution, and right to descent to his

,Will and any and all other rights arising out of the marriage relationship, except as may be specifically provided hereafter in this Agreement, and to any and all property, interest in property, real, personal, and mixed, now owned or hereafter acquired by Husband, and hereby agrees that Husband may henceforth acquire, hold, manage, alienate, lease and convey his said property without her knowledge, further consent, or joinder, in accordance with the provisionsofN.C.G.S, §39-13.4, just the same as if she had never been married to him, and further, does hereby release, relinquish, and renounce any and all right to administer upon his estate.

(b) The Husband, for himself, his heirs, executors, administrators, and assigns, hereby releases and'relinquishes unto the Wife, her heirs, executors, administrators, and assigns, all right of curtesy, inheritance, descent and distribution, and right to descent to her Will and any and all other rights arising out of the marriage relationship, except as may be specifically provided in this Agreement, and to any and all property or interest in property, real, personal and mixed, now owned or hereafter acquired by Wife, and hereby agrees that Wife may henceforth acquire, hold, manage, alienate, lease and convey said property without his knowledge, further consent, or joinder, in accordance with the provisions ofN.C.G,S, § 39-13.4,just the same as ifhe had never been married to her, and further, does hereby release, relinquish, and renounce any and all right to administer upon ,her estate,

(c) It is agreed on the part of each party hereto that in the event of a sale, transfer, or other conveyance of property, real, personal, or mixed, now owned or hereafter acquired by either party, if it should become necessary to guarantee or pass good title thereto, that the other party to this Agreement should be called upon to execute any deed, conveyance, bill of sale, or other legal instrument concerning the dealing in such property, then in such event the other party to this

2

•

• •

. ' • •

Agreement agrees to and will sign any instrument or conveyance which may be reasonably required to perfect title in the party to whom it is sought to be conveyed and it is covenanted and agreed between the parties that each of them shall and will, at any time or times hereafter, make, execute and deliver any and all such other and further assurances as either of said parties shall reasonably require for the purpose of giving full effect to this Agreement and to this covenant, so long as no obligation is thereby imposed upon the party whose signature is sought by the other.

(d) This provision shall not apply to any Social Security benefits the parties may have by reason of their marriage to each other or to any real property retained by the parties as tenants by the entirety so long as said estate by entireties or as tenants in common continues.

"._--'.

4. MODIFICATION: This Agreement can be altered, amended or modified by further written agreement duly executed by the parties. Any failure by either party to specifically perform or to enforce performance exactly according to the letter of this Agreement shall not constitute an alteration of the same by way of enlargement, reduction, estoppel or otherwise, unless confirmed in writing by the parties. It is understood that the parties may by mutual agreement make temporary modifications from time to time as conditions require and that this Agreement shall nonetheless be binding upon the parties as written, except in the event of a material breach.

5. PLACE OF RESIDENCE: Each party shall at all times keep the other informed of his or her place of rcsidence and shall promptly notifY the other of any change, giving the address of the new place of residence until the minor child of the parties attains the age of eighteen (18) or

. graduates from high school, whichever is later.

6. 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. Either party shall have the right to compel the perfollnance of the provisions ofthis Agreement by suing for the breach thereof in the courts where jurisdiction of the parties and subject matter exist. In the event either party believes the other to be in default ofthis Agreement, he or she shall give the other party notice in writing of such alleged default, and the party given such notice shall have five (5) days thereafter to cure the alleged default. If the alleged default is not cured within the five (5) days, the party claiming such default shall be free to proceed as provided by law. .

7. PARTIAL INVALIDITY: Ifany part or parts of this Agreement shall be rendered null and void or of no effect for any reason, all of the remaining parts of this Agreement, whether the same shall be considered executed or executory, shall remain in full force and effect and shall be binding upon the parties hereto and the same shall not be considered to be revoked, amended or invalidated.

8. BINDING EFFECT: The parties hereto agree that this Agreement shall be binding upon the parties and their respective heirs, executors, administrators, successors and assigns. .

3

'. • •

•

9. CHILD CUSTODY, PHYSICAL CUSTODIAL TIME-PERIODS, AND SUPPORT:

(a) Child Custody and Physical Custodial Time-periods: It is agreed that Wife and Husband shall have joint legal custody of the child born to the marriage. It is further agreed that the Wife shall have the primary physical care, custody, and control of the child born to the marriage. The Husband shall have the physical custody of the child as set forth below. At all other times, the minor child shall reside in the physical custody of the Wife. The parties agree that this aITangement will be re-evaluated between June 1 and June 30, 2007, with any changes made to this schedule to take effect July 1,2007.

- - - - - - - -

(i) Regular Weekends: Except for the periods of summer vacation and holidays as set forth below and except for what may otherwise be mutually agreed upon between the parties, beginning July 1,2006, and continuing every other weekend thereafter, from after school or daycare on Friday until between 5:00 PM and 7:00 PM the Sunday thereafter, unless the parties mutually agree otherwise in advance.

(ii) Regular Weekdays: Except for the periods of summer vacation and holidays as set forth below and except for what may otherwise be mutually agreed upon between the parties, beginning Monday, July 3, 2006, and continuing every week thereafter, on Tuesday from after school or daycare overnight until drop off at school or daycare on Wednesday mornings and on Thursday from after school or day care until 7:00 PM.

(iii) Holidays: Notwithstanding the regular weekend and weekday physical custodial time-periods set forth above or the summer vacation set forth below, the parties each shall be entitled to celebrate the following holidays with the minor child. The below holiday schedule supersedes and takes precedence over the regular weekend, regular weekday and summer vacation physical custodial time-periods set forth in this paragraph 9(a). Following the end of each holiday, the regular weekend and weekday schedule set forth above shall resume without interruption. The resumption of those schedules without interruption may result in a party having time with the minor child in excess of the time set forth in the regular weekend and regular weekday physical custodial time-periods but in an effort to create an atmosphere of predictability for the minor child and the parties, it is best not to alter the regular weekend and weekday physical custodial time-periods.

(A) Christmas and New Year's EvelDay: In every odd-numbered year, the Husband shall have the physical custody ofthe minor child from 9:00 AM on December 24 until I :00 PM on December 25 and the Wife shall have the physical custody of the minor child from 1:00 PM on December 25 until 7:00 PM on January I. In every even-numbered year, the Wife shall have the physical custody ofthe'minor child from 9:00 AM on December 24 until I :00 PM on December 25 and the Husband shall have the physical custody of the minor child from I :00 PM on December 25 until 7:00 PM on January I.

4

• •

•

(B) Martin Luther King, Jr. Dav: In every odd-nwnbered year, the Husband shall have the physical custody ofthe minor child for the MLK, Jr. holiday. In every evennumbered year, the Wife shall have the physical custody of the minor child for the MLK, Jr. holiday. The holiday shall constitute Sunday at 7 :00 PM until Monday at 7 :00 PM.

(e) Easter: In every even-numbered year, the Husband shall have the· physical custody of the minor child to celebrate the Easter holiday. In every odd-numbered year, the Wife shall have the physical custody of the minor child to celebrate the Easter holiday. The holiday shall constitute the full holiday weekend from after school or child-care program on Thursday until drop off at school or child care program on Tuesday morning.

- - - -.. .

(D) Memorial Day: The Wife shall have physical custody of the minor child each year to celebrate the Memorial Day holiday. The holiday shall constitute the full holiday weekend from after school or child-care program on Friday until drop off at school or child-care program on Tuesday morning.

(E) 4th of July and Summer Break from Daycare: In every odd-numbered year, the Husband shall have the physical custody of the minor child for the 4th of July holiday and summer break from child-care program. In every even-numbered year, the Wife shall have the physical custody of the minor child for the 4th of July holiday and summer break from childcare program. The parties agree to re-evaluate the summer schedule when the minor child begins attending school.

(F) Labor Day: The Husband shall have physical custody of the minor child each year to celebrate the Labor Day holiday. The holiday shall constitute the full holiday weekend from after school or child-care program on Friday until drop off at school or child-care program on Tuesday morning.

(0) Savannah's Birthday: In every even-numbered year, the Husband shall have physical custody of the minor child from 1:00 PM on October 12 until I :00 PM on October 13 andthe Wife shall have physical custody of the minor child from I :00 PM on October 13 until I :00 PM on October 14,. In every odd-numbered year, the Wife shall have physical custody of the minor child from 1:00 PM on October 12 until 1:00 PM on October 13 and the Husband shall have physical custody of the minor child from I :00 PM on October 13 until I :00 PM on October 14.

(H) Thanksgiving: In every odd-numbered year, the Husband shall have the physical custody of the minor child for the Thanksgiving holiday from after school or daycare on the Wednesday· before Thanksgiving through 7:00 PM the. Sunday immediately following Thanksgiving. In every even-numbered year, the Wife shall have the physical custody of the minor child for the Thanksgiving holiday from after school or daycare on the Wednesday before Thanksgiving through 7:00 PM the Sunday immediately following Thanksgiving.

5

, , ,

(I) Mother's DaylFather's Day: The minor child shall be with the honored parent from 9:00 AM to 6:00 PM on Mother's Day and Father's Day every year.

(iv) Summer Vacation: Once the minor child begins attending school, and notwithstanding the regular weekend and weekday physical custodial schedule, the parties each shall be entitled to one uninterrupted seven (7) day period with the minor child each year during the child's summer break from school (June, July, August), The parties shall each select his'or her vacation period by exchanging desired weeks with each other in writing on or before May 15th of every year. In the event there is a conflict in the parties' selections for the period of vacation and the parties cannot mutually agree for one party to select another vacation period, the parties shall flip a co;~ and the winner of the coin toss shall have"the first opportunity to select the first vacation period, ,the loser of the coin toss will then select the next vacation period. All vacation periods must begin on the first day of the vacationing party's regularly scheduled weekend with the minor child unless otherwise mutually agreed between the parties in writing, The parties may not extend the seven-day period by attaching it to their regularly scheduled weekday, weekend or holiday time with the child, Following the end of the vacation period, the regular weekend and weekday physical custodial schedule set forth above shall resume without interruption, The resumption of this schedule without interruption may result in a party having time with the minor child in excess of the time set forth in paragraphs 9(a)(i) and 9 (a)(ii), but in an effort to create an atmosphere of predictability for the minor child and the parties, it is best not to alter the regular weekend and weekday physical custodial schedule,

. (b) Visitation Transportation: Unless otherwise mutually agreed between the parties, the Husband shall be solely responsible for transporting the minor child to and from the Wife's home for all of his physical custodial time outlined in paragraph 9(a) above,

(c) Relocation: The parties agree and acknowledge that there is a close relationship between the child and the Wife and between the child and the Husband, and that it is in the best interest of the child and necessary for her welfare and development that she have the benefit of input from both parents on a frequent and regular basis and the opportunity for such input is provided by the tellllS of the custodial arrangement herein, Any change in the custodial arrangement that would reduce substantially the opportunity for the child to have regular and frequent personal contact with both parents would be contrary to the best interest of the child. In the event that one of the parents should elect to relocate out of the area such that the custodial schedule outlined in Paragraph 9(a) above, the parties shall attempt to negotiate necessary changes to the custodial schedule between themselves or through mediation prior to initiating litigation, The parties further agree to provide as much notice to the other party as possible in the event that a relocation requiring changes to the custodial schedule arises, in order to provide adequate time to negotiate such changes prior to any anticipated relocation taking place.

6

, ,

,

(d) Child Support: ,

(i) Financial Support: Beginning on the first day of September, 2006, and continuing on the first of each and every month thereafter, the Husband shall pay the sum of One Thousand Three Hundred dollars ($1,300) per month directly to the Wife to be utilized for the support and maintenance of the minor child, In negotiating the amount of child support, the parties have taken into accountthe estates and income of the parties and the needs ofthe minor child, At the present time, the Husband is employed full-time at Alpha Vax as a research scientist, with gross earnings of approximately Seven Thousand One Hundred Ninety dollars ($7,190) per month and the Wife is employed full-time as a contract cmployee as a research scientist (six month telln), with gross' earnings' of approximately Twenty-Orie Dollars ($21,00) per hour for a: fortY hour work-week, The work-related child'care expenses for the minor child are approximately Eight Hundred Eighty dollars ($880) per month and the major medical and health insurance premium for the minor child is approximately One Hundred dollars ($100,00) per month, The Husband further has the opportunity to earn bonuses through his employment. In the event that the Husband receives a bonus, he shall pay to Wife ten percent (10%) of the gross sum received within 5 days of having received the same, Thc Husband shall make a good faith effort to earn all bonuses that he has the opportunity to receive,

Until such time as the marital residence is sold, and as long as the Wife continues to reside in the marital residence, the Husband shall pay the sum of One Thousand One Hundred Dollars ($1, I 00) per month in child support

The amount of child support paid by the Husband shall be periodically reassessed to include income from second jobs, loss of employment, and changes in child-care expenses,

•

The Husband's obligation to provide this monthly support shall terminate when the minor child attains the age of 18 except:

-lfthe child is otherwise emancipated, payments shall terminate at that time;

-If the child is still in primary or secondary school when the child attains age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, or attains age 20, whichever comes first, unless a court of competent jurisdiction in its discretion orders that payments cease at age 18 or prior to high school graduation; or

-If the child is mentally or physically incapable of self-support upon attaining the age of 18, support payments shall continue until the child attains the age of 20 or becomes capable of self-support, whichever first occurs,

(ii) Health Care and Major Medical Insurance: The Husband shall continue to maintain health care and major medical insurance on behalfoftheminor child as long as his child support obligation set forth in paragraph 9(d)(i) above continues, All un-reimbursed medical expenses, including all deductibles, incurred on behalfofthe minor child shall be paid by the parties

7

• •

•

equally: 50% by the Husband and 50% by the Wife. For the purposes of this paragraph "medical expenses" shall include health care, medical care, eye care, dental care (including orthodontia) and mental health care (including therapy and evaluation).

Promptly following the signing of this Agreement by both parties, the Husband shall provide the Wife with an insurance identification card, insurance booklet, and claim forms. Either party presenting the minor child for medical or dental treatment shall promptly thereafter provide to the other party a copy ofthe statement for such service, including a description ofthe services rendered, and shall also file a claim for insurance where applicable. The other party shall reimburse the first party for his or her share of the medical expenses within five (5) days of the servIC"e by the medical provider. Upon receiving an explanation of benefits or other information from the insurance carrier pertaining to any claim, that party shall promptly provide a copy of same to the other party. All insurance proceeds based upon a claim for services rendered to the minor child shall be paid over promptly to the medical provider or, if the medical provider has been paid, to reimburse the party or parties (in proportions paid) who had previously paid medical provider.

(iii) Life Insurance: The Husband and Wife shall each maintain for the benefit of the child of the marriage a life insurance policy in the ainount of at least One Hundred Thousand Dollars ($100,000). The beneficiary of each policy shall be the other party as trustee for the minor child. Said policies are to be kept in effect until such time as the minor child attains the age of 18 or graduates from high school, whichever is later, or the age of twenty-two (22) if the child is enrolled in an educational facility as a full-time student, after which time the parties' obligations under this paragraph shall cease and terminate.

(iv) College Expenses: The Husband and Wife shall each provide fifty percent (50%) of the funds required to defray or cover the ordinary and necessary college expenses for the minor child, including but not restricted to: tuition, fees, books, transportation, housing, meals, dues and other ordinary and necessary expenses of a four-year college education. The parties' obligation under this paragraph shall not exceed the average annual cost for an in-state resident to attend a statesupported college or university in any state for which the minor child may qualifY for in-state tuition, and shall also be contingent upon the child's making satisfactory academic progress (i.e. not being on academic probation). The parties' obligation under this paragraph shall cease when the minor child completes a four-year college education or attains the age of twenty-two (22), whichever is later.

(v) Extracurricular Activities. The Husband and Wife agree to share equally the costs incurred for any extracurricular activities of the minor child.

(e) Te.lephonic and E-Mail Communication: Beginning immediately, the non-physical custodian shall have the right to telephone and/or contact the minor child at the physical custodian's. home on a regular basis. All telephone communication shall take place at reasonable hours, taking into consideration the age, school schedule and other activities of the minor child. If either party takes the minor child to stay overnight at a place other than his or her home, that party shall notifY

8

• •

• •

the other party and shall telephone the other party during such time period to enable the non-physical custodian to speak to the minor child via telephone.

Nothing in this Agreement requires either party to provide at his or her expense, computer and e-mail access to the child. If one party wants e-mail access to the minor child and such e-mail access is not already available to the minor child, the party wanting such e-mail access may at his or her own expense provide for the child the tools necessary and the other party shall not in any way thwart the child from utilizing the same. All telephone and e-mail communication between the minor child and each party shall be unsupervised and private.

(f) Concerning the Child's Welfare Further:

(i) The parties shall cooperate effectively and consistently with each other toward the best interest of the child.

(ii) The parties shall share joint decision-making regarding major decisions for the child's education, health care, religious training and general welfare. The parties shall enter into discussions regarding major decisions for the child in good faith and shall make every effort to reach a mutual decision for the child's best interests.

(iii) When the child is in the physical custody of either party, that party shall have the right to make and shall have the responsibility for making the minor, day-to-day and routine-type decisions in connection with the child. Both parties shall keep the child in a clean, wholesome and appropriate environment at all times when in his or her care, free from the use of illegal drugs, excessive use of prescription drugs, excessive use of alcohol or from any condition hazardous to the welfare of the child.

(iv) Neither party shall schedule extracurricular activities for the minor child or commit the minor child to participate in extracurricular activities during the other party's period of physical custody without the prior, written consent of the other party. Further, unless otherwise mutually agreed in writing, except for "show-like" events (i.e. soccer garnes, recitals, plays, etc.), the routine activities (i.e. soccer practice, music lessons, etc.) of the minor child shall be attended only by the physical custodial parent. All "show-like" events (i.e. soccer games, recitals, plays, etc.) may be attended by either or both of the parties, each party deciding in his or her discretion as to whether he or she shall attend.

(v) The parties shall timely advise each other of the child's grades, progress in school, health and welfare. Each party shall be given direct access to the child's medical, dental and school records and reports and each party shall be responsible to obtain copies of such records and reports on his or her own accord. Further, both parties may attend "show-like" events at school. If the minor child is not required by the school to participate in the school event, however, the physical custodian on the day of the event shall decide whether the minor child will attend such an event.

9

, •

• •

, (vi) Each party shall have direct access to the child's doctors, dentists, teachers and any other individual directly related to the well-being of the minor child and, except for the parties having to notify each other of the minor child's medical care providers and enrollment in school, each party shall be responsible to contact on his or her own initiative any individual directly related to the well-being of the minor child.

,

(vii) Both parties shall keep the other infonned of the health of the minor child. The parties shall promptly inform the other party of any serious illness and/or injury to the child that requires medical attention. Absent the minor child's hospitalization or the minor child being c()nfined to bed by Written doctor's instructions, the minor child's health shall not be a basis for nonexchange of physical custody between the parties at the times set forth in paragraph 9(a). Both parties shall provide each other with any medications that the child is taking at the time of the transfer of the child. Both parties shall provide each other with sufficient information to allow the other party to obtain rcfills of that medication.

(viii) Each party will act in every respect so as to nurture and encourage the respect and affection of the minor child for each of her parents and each of her parents' families. Neither party shall disparage, nor permit third parties to disparage, the other party or his or her family in the presence or hearing of the child or communicate his or her dissatisfaction with the other party through the minor child.

10. COVENANT OF FULL DISCLOSURE: Each party covenants with and represents to the other that she or he has made a full and fair disclosure of all property and interest in property owned or believed to be owned by her or him. If it be determined that a party did not disclose the existence of a correct valuation for property and/or interest in property owned or believed to be owned by her or him, the parties agree that said property, or the value thereof as of the date of this Agreement or as of the date of distribution (whichever is greater), shall be divided equally'between the parties. The person to whom the correct valuation and/or interest in property was not disclosed shall make the decision as to whether he/she receives one-half of the property or one-half of the value of the property described above. The parties further agree that the property distributions set forth in this Agreement are fair and equitable and satisfy all of the requirements of the North Carolina laws of equitable distribution.

I I. PROPERTY DIVISION AND SETTLEMENT: It is the intent and the desire of the parties to make an equitable distribution and partition of their jointly-owned, marital and divisible assets and liabilities and they do hereby agree to the following equitable distribution and, partition:

(a) MARITAL RESIDENCE: The parties currently own as tenants by the entirety the marital residence located at 204 Yorktown Drive, Chapel Hill, Orange County, North

10

•

• •

Carolina.

(i) Possession of Marital Residence. The parties have agreed that the Wife shall have the sole possession of and the right to reside in the marital residence until such time as the parties sell the residence to a third party. Neither the Husband nor his relatives or friends shall be permitted to use or enter upon the marital residence or its surrounding property unless granted the prior, written permission by the Wife.

(ii) Sale of the Marital Residence. Husband and Wife agree that all reasonable effort will be made to place the marital residence on the market for sale by January 31, 2.007. 'Anycosts incurred in preparin~ the residence for sale or for the sale of the residence shall be borne equally by the parties. The net proceeds from the sale of the residence shall be divided equally between the parties.

(iii) Maintenance of the Marital Residence. Until such time as the marital residence is sold to a third party, the parties shall timely pay the monthly mortgage payment (which includes the property taxes and homeowner's insurance), with each party paying one-half of the payment. The parties agree that neither party shall further encumber the marital residence without the express, written consent of the other party and agree that each party shall indemnity and hold the other party harmless for any such further encumbrance. During the aforesaid time-period, the parties shall pay equally for routine maintenance and repair of the marital residence, household equipment and appliances. . .

(iv) Major Repairs and Fixing Up Expenses. Any single repair or maintenance of the marital residence which costs in excess of $1 00 shall be deemed a major repair and not a routine expense. The parties shall each pay fifty percent (50%) of any and all such major repair expenses. In the event neither party has the funds available at a time when a major repair is immediately necessary, the parties shall obtain ajoint loan and each party shall pay one-half of the regular payments due thereon. In the event only one party is unable to afford the expense at a time when a major repair is immediately necessary, that party shall either:

(A) Take out a sole loan to pay the hecessary expense; or

(B) If the other party is able to pay the total sum necessary for the •

repair, that party shall pay the expense of the repair and the other party shall reimburse him or her, as the case may be, for his or her one-half share (plus any interest incurred as a result of such situation) at a monthly rate to be agreed upon between the parties until paid in full or until the closing on the sale to a third party, at which time this debt should be paid in full from the debtor's share of the net proceeds of the sale.

•

11

•

(b) VEHICLES.

(i) 1996 Mercury Sable. The Wife shall retain as her sole and separate property the 1996 Mercury Sable currently in her possession. There currently is no lien on the vehicle. The Husband shall immediately sign any documentation presented to him that may be necessary to transfer the title of said vehicle into the Wife's sole name.

(ii) 1997 Saturn. The Husband shall retain as his sole and separate . property the 1997 Saturn currently in his possession. There currently is no lien on the vehicle. The Wife, shall immediately sign any documentation presented to her that may be necessary to transfer the

-------

title of said vehicle into the Husband's sole name.

(c) CASH AND INVESTMENT ACCOUNTS. The Husband shall retain as his sole and separate property the checking and savings accounts currently held in the parties' joint names. The Husband shall disburse to the Wife one-half of the funds held in said accounts prior to

•

removing her name therefrom. Upon receiving her share of the funds maintained in said accounts, the Wife shall sign any necessary documents in order to remove her name from the accounts. The Wife shall retain as her sole and separate property the State Employees Credit Union account currently held in the parties' joint names. The Wife shall distribute to the Husband one-half of the funds held in said account prior to removing his name therefrom. Upon receiving his share of the funds maintained in said account, the Husband shall sign any necessary documents in order to remove his name from the account.

The Husband and Wife shall each retain as his or her separate property any and all checking accounts, savings accounts, money market funds and any other non-retirement investment funds currently maintained in his or her individual name or for his or her individual benefit. Neither party now has, nor in the future shall have, any claim to such property in the possession of or . maintained for the benefit of the other party. Further, the Wife shall maintain as her sole and separate property the investment account established in her separate name by her parents and the money market account established with an inheritance from her grandparents ..

(d) PENSION, RETIREMENT AND IRA ACCOUNTS. HuslxmdandWIre each have retirement accounts held in his or her separate name. The Wife shall receive a distribution of one-half of the funds accrued in the Husband's retirement account from the date of marriage through the date of separation, plus or minus any growth or loss thereon from the date of separation through the date of distribution. The distribution shall be a tax-free transfer ofa marital asset, to be effected by entry of a Qualified Domestic Relations Order, if necessary. The funds so distributed shall be transferred from Husband's retirement account directly to a retirement account in Wife's name.

(e) ALL OTHER PROPERTY. The parties have heretofore equitably divided any and all property, including personal property, acquired by them, or either of them, during the

12

, • ,

marriage, except as provided below. Neither party now has, nor in the future shall have, any claim to any such property in the possession of, or maintained for the benefit of, the other party, other than the property sct forth below. Both parties hereby and forever waive any claim he or she may have to a court-ordered equitable distribution of the marital property between the parties in accordance with the provisions of North Carolina law or the law of any other State in the United States.

The parties have not yet divided the large appliances such as the washer and dryer and refrigerator and the items presently stored in the shed at the marital residence, The parties shall divide such property as mutually agreed between them, In the event that the parties are unable to agree upon the division of such property, the property shall be distributed as follows: The parties

. . .

shall prepare a full and complete list of all remaining property to be divided. The parties shall then toss a coin, The party who wins the coin toss shall be entitled to make first selection of one item of property from the list to be distributed to him or her, The other party shall then make his or her choice of one item, Regarding items that were purchased or routinely maintained as a "set," such as glassware or flatware, all of those such items shall constitute one item for distribution purposes, The parties shall alternate selecting items from the list until all of the items have been distributed. Both parties agree that this method of distribution shall be a final and binding distribution of such property and stipulate that this method of distribution is fair and equitable.

12. DEBTS:

(a) Joint Accounts:

(i) Cellular Telephone Contract. The parties have a joint cellular telephone plan with approximately one and one-half year remaining for the contract term. Each party shall pay one-half of this debt and any overage or other fees incurred for his or her own use of the cellular telephone until such time as the parties agree to terminate the contract. If the parties terminate the contract prior to the expiration date and fees or penalties are incurred for such action, each party shall be responsible for payment of one-half of such fees or penalties, unless otherwise agreed between the parties in writing,

(ii) Automobile Insurance. The parties currently have a'joint insurance plan for their automobile coverage, Each party shall be responsible for payment of the premium related to his or her own vehicle until such time as the parties shall obtain separate insurance policies.

(b) Separate Accounts:

(i) The Wife shall be solely responsible for the timely payment of all credit card debt in her separate name, indemnifYing and holding the Husband harmless for. any claims thereon,

13

• •

• •

(ii) The Husband shall be solely responsible for the timely payment of all credit card debt held in his separate name, indemnifYing and holding the Wife harmless for any claims thereon.

(c) The Husband and Wife shall establish his or her own separate debt accounts. Neither party shall hereafter charge, or cause, or permit to be charged to or against the other, any purchase which either he or she may hereafter make, and shall not hereafter create any engagement or obligations in the name of or against the other party and shall never hereafter secure or attempt to secure any credit upon or in connection with the othcr party or in his or her name; and each of them will promptly pay all debts and discharge all financial obligations which he or she may incur for hiiriself or herself and will hereafter hold the ather party free and harmless and indemnifY the other party from any and all subsequent debts, obligations or liabilities which each may incur or sustain.

13. TAX FREE EXCHANGE: The parties believe arld agree that the division of property heretofore made by this Agreement is a nontaxable division of property between co-owners under § I 041 of the Internal Revenue Code of 1986 and successive provisions rather than a taxable sale or exchange of property. Each party covenants not to take any position with respect to the adjusted basis of the property assigned to him or her that is inconsistent with this provision in his or her federal 'Ot state tax return.

•

14. INCOME TAXES: Beginning in the tax year 2007, the parties herein shall file separate and individual income tax returns. Further all tax exemptions, credits and benefits available under the Internal Revenue Code pertaining to the child of the marriage will be split between the parties equally or the parties will alternate receiving exemptions, credits and benefits.

Alternatively, the parties may elect to file joint federal and state income tax returns for any taxable period in which they mutually agree to do so and in which it is legal to do so under the Internal Revenue Code and applicable state law. In the event that the parties elect to file joint tax returns, the parties shall furnish such information and assistance to each other as is required for the accurate completion of such returns, and both of the parties shall execute such returns. The Husband and Wife shall each compute his or her own federal and state income tax liability using his or her own wages and other profits, earnings and other items of income for the tax year involved, taking into account the deductions and exemptions attributable to him or her, and using the appropriate tax rate .. The Husband and Wife shall each become liable for a percentage of the federal and state income tax liabilities shown on the joint returns, computed by respectively comparing his or her individual federal and state income tax liabilities as if filing separately to the sum of Husband's and Wife's federal and state income tax liabilities if they file jointly. The parties shall share any refund or responsibility for any deficiency computed in accordance with the formula hereinabove set out, crediting to each the amount withheld from his or her earnings and the amount of estimated tax paid by each, if any. Any refunds from prior year returns applied to taxes for the current year shall be allocated and credited in accordance with the formula hereinabove set forth. The obligations of the ,

parties for the payment of additional assessments, interest or back taxes, with respect to all joint tax •

14

• •

"

retums filed in the future, shall be determined in accordance with the formula hereinabove set out; provided, however, that neither party shall be liable for any taxes, penalties or interest relating to the income, deductions or omissions of the other party, and each party hereby indemnifies and holds harmless the other party for any such assessment or other expenses incurred in connection with such assessment.

The parties may also elect to file separate income tax retums, in which event each party shall be responsible for his or her own taxes, and the provisions in the above paragraph relating to the liability and cross indemnifications by and for each party shall also apply in such event.

15. ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party any further instrument that may be reasonably required to give full force and effect to the provisions of this Agreement.

•

16. WAIVER OF POST-SEPARATION SUPPORT AND ALIMONY: Each party hereby acknowledges that he or she is not dependent upon or in need of maintenance and support from the other party and he or she hereby waives all claims against the other party for post-separation support or for alimony or any other financial maintenance. It is understood and agreed that this settlement is the total and complete release of each party by the other and all matters and charges whatsoever in the nature of post-separation support and alimony.

17. INTEGRATION: All of the provisions contained in paragraphs 10 through 16 are inseparable from each other and are mutually dependent upon each other, and each paragraph is respectively given as a reciprocal consideration-for all of the other paragraphs. It is the intent ofthe parties that these numbered paragraphs be integrated with each other. Excepting only these paragraphs specifically designated as being integrated, all of the remaining paragraphs of this Agreement are independent and completely separable, and if any of these non-integrated and separable provisions is held to be invalid or unenforceable, or is subsequently modified, then all of the remaining independent and separable provision of the Agreement shall, nevertheless, continue in full force and effect.

18. RECONCILIA TION:' In the event the Husband and Wife end their separation by reconciliation and resumption of marital cohabitation, the executory provisions of this Agreement shall be thereby canceled and rescinded, but all provisions hereof which have been executed or partially executed at that time, shall, to the extent of complete pcrfOimance, continue in full force and effect unless and until they are canceled or rescinded in a written agreement duly signed by both Husband and Wife in the same formality as this Agreement.

19. SUBSEQUENT DIVORCE: This Agreement is unconditional and shaH survive any subsequent divorce decree obtained by either party, and no such decree shall terminate, modify or otherwise affect the rights and obligations provided for herein. This Agreement shall not be incorporated into any divorce decree obtained by either party.

15

, •

• • ,

20. VOLUNTARY EXECUTION: Each party acknowledges that this Agreement is entered into of his or her own free will and volition and that no coercion, force, pressure or undue influence has been used against him or her, either by the other party hereto or by any other person or persons in the execution of this Agreement. Neither party has relied upon any representation or promise in making this Agreement except those expressly set forth herein.

21. WAIVER OF GRIEVANCES: Any conduct on the part of either party occurring prior to the execution of this Agreement which may have constituted a basis for any legal claim by either party against the other party is hereby waived and released and will not be used by either party againsfthe other party in any future proceeding between them.

22. WAIVER REGARDING THIRD PARTIES: The Husband and Wife hereby release any and all third parties from any and all claims based upon any pre-separation or postseparation conduct of any third parties insofar as such conduct may form the basis of any claims against a third party for alienation of affections, criminal conversation or intentional or negligent infliction of emotional distress and each party hereby releases any and all third parties from all such claims. With respect to any claims for alienation of affection, criminal conversation or intentional or negligent infliction of emotional distress, it is the intention of the parties that any such third party as may be designated as a defendant in any such action shall benefit directly fr:om this release and shall be deemed a third party beneficial of the release contained in this paragraph, and shall have the right to enforce this provision on his or her own behalf.

23. .JURISDICTlON: Each party hereby submits herself or himself to the jurisdiction of the courts of the State of North Carolina in any fulure action brought by either party to enforce the provisions of this Agreement. .

24. SITUS: All matters affecting the interpretation of this Agreement and the rights of the parties'hereto in relation to this Agreement shall be governed and controlled by the laws of the State of North Carolina.

25. ENFORCEMENT OF AGREEMENT: In the event either party is in any way in breach of this Agreement, said party shall be given written notice of the breach and shall have five (5) days to comply with the terms of this Agreement. In the event said party fails to comply, the other party shall be free to take all action necessary to enforce this Agreement, including but not limited to taking court action. In such event, the noncomplying party shall be responsible for all costs and expenses incurred to enforce this Agreement, including but not limited to 10% interest on any sums due, reasonable attorneys' fees, court costs and loss of income.

Further, each party stipulates and acknowledges that he or she has had ample opportunity to participate in the drafting of this Agreement. In this regard, in the event a court of competent jurisdiction determines that there is an an1biguity in this Agreement, such ambiguity shall

,

16

, • •

not be decided in one party's favor because the other party's attorney drafted this Agreement. •

26. NON-RECORDATION OF AGREEMENT: This Agreement shall not be recorded without the prior, express written consent of both parties. A Memorandum hereof, however, shall be executed by either party upon request of the other party and may be recorded in any recording office at any time. No such Memorandum of Agreement shall contain the details or financial provisions of this Agreement, except as otherwise specifically agreed to by the parties.

27. LEGAL REPRESENTATION: The parties to this Agreement agree and stipulate that Lisa W. Reynolds of Chapel Hill, North Carolina, represents the Wife, and Richard Daugherty of CnapelHil1, North Carolina, represents the Husband. In this regard, each party has had sufficient opportunity to discuss the terms of the Agreement with his or her respective counsel prior to its execution. Further, the parties agree and understand that Lisa W. Reynolds and Richard Daugherty are not tax specialists nor are they Certified Public Accountants and, therefore, each party should seek the advice of tax professionals with regard to the tax consequences of this Agreement.

IN WITNESS WHEREOF, the parties hereunto have se,t their hands and seals the day and year first above set forth, in four (4) originals, containing this and the sixteen (16) preceding pages, one original copy of this contract of separation being retained by each of the parties hereto and one being retained by each of the attorneys hereto.

~ .. __ (SEAL) 'ka W. DePaz

, Roberto A.

17

• , •

NORTH CAROLINA

Wt:lKE COUNTY •

I. HfJrz, Lj,.} fAH£'/ , Notary Public for said County and State, do hereby certifY that Erika W, DePaz did personally ap~ear before me this day and acknowledged to me that she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated.

Witness my hand and official seal (~9tt1~'J6!b day of D£Cli(flbe.fL- ,2006. "" ~ FAH/: '.-~ ~ ......... y ~

~ ~.··O~~RY . ~-§;/~ ~ = . = ':=±::':t,: '--' :: 0:: Notary - 1..-,/ 'J

Identification provided:

' .. b' •• ~ ''" .. ~ .... ~ • I "'" 'Af1(E; CO" ,', .... NCD L ""11"""'\

,;cpT. ,J-q, ;lOO,

NORTH CAROLINA

I, EJ,,)I\!=.l EIYJu,iSC ' Notary Public for said County and State, do hereby certifY that Roberto A, DePaz did personally appear before me this day and acknowledged to me that he voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated,

Witness my hand and official seal this the l./:iday of~ce"",bcr- , 2006,

Identification provided: we.. 1J L.

18




.

PLEASE RETAIN YELLOW TRAILER PAGE •

It is part of recorded document, and must be submitted with original for re-recording

and/or cancellation. .

***********************************~************************************************************************************

Filed For Registration: 09/26/2007 11 :57:48 AM

Book: RE 5753 Page: 504-522


SEP-A 19 PGS $65.00

[Ii"§; $25.00


2007044448

Durham CountyDINGLER

• •

•

Prepared by Martha McKee Return to Holly S. Dingler

5226 Russell Road Durham, NC 27712

STA TE OF NORTH CAROLINA

COUNTY OF DURHAM

• FOR REGISTRATION REGISTER OF DEEDS

Willie L. Covington DURHAM COUNTY, NC

2008 MAY 08 10:07:17 AM BK:5949 PG:937-953 FEE:$59.00

SEPARATION AND PROPERTY SETTLEMENT AGREEMENT

THIS SEPARATION AND PROPERTY SETTLEMENT AGREEMENT

made and e~tered into the O? q~ day of April, 2008, by and between Bradley Michael

Dingler (hereinafter referred to as "Husband), a resident of Durham County, North

Carolina, and Holly Sarvis Dingler (hereinafter referred to as "Wife"), a resident of

Durham, North Carolina ("Husband" and "Wife" collectively are also sometimes referred

to hereinafter as "parties"), and shall become effecti ve as of the date that it has been •

•

executed by each party hereto;

WITNESSETH:

THAT WHEREAS, the parties hereto were lawfully married to each other on

February 25, 1995, and •

WHEREAS, there were two children born to the marriage of the parties, to wit:

Michael Van Dingler, born June 1, 1999 and Doni Anne Dingler, born September 8,

2003; and

WHEREAS, THE PARTIES SEPARATED ON OR ABOUT the 30th day of

September, 2007, and intend to live separate and apart for the remainder of their natural

li ves;

WHEREAS, each of the parties is more than eighteen years of age, and the

parties desire to confilll1 their separation and to make arrangements in connection

therewith, including the settlement of their property rights, their financial affairs, their

support and maintenance obligations, and other rights and obligation growing out of the

marital relationship between them;

WHEREAS, after mature consideration and judgment, each party hereby enters

into this written agreement and full understand the terms, conditions and provisions

hereof, and deems such terms to be fair, just and reasonable;

•

I

NOW THEREFORE, in consideration of the premises and of the mutual

agreements and covenants herein contained, the parties hereto covenant and agree each

with the other as follows:

GENERAL PROVISIONS

1. SEPARATION. It shall be lawful for each party at all times to live separate

and apart from the other party at such place or places as he or she may from time to time

choose or deem fit, free from all marital control and authority as if each were unmarried.

Each party may engage in any employment, business, profession or trade which either of

them desires, it being distinctly understood that each of the parties hereto shall have

every right and privilege, for all intents and purposes, the same as if they were single and

unmarried. All income and profits realized by either party shall be for his or her sole and

separate use and benefit, free from any and all control, restraint or interference, direct or

indirect, of the other party.

2. NO INTERFERENCE. Each party shall be free from interference,

authority, control or restraint, direct or indirect, by the other, as fully as if he or she were

single and unmarried. Neither shall molest, annoy, harass, make disparaging remarks, or

in any way interfere with the other, and neither shall come onto the residential premises

of the other without express advance permission.

3. PROPERTY OWNERSHIP AND SUBSEQUENT PROPERTY

TRANSACTIONS. All items of property now owned or hereafter acquired by either of

the parties shall be owned, held and enjoyed by them independently of any claim or right

of the other. Further, except as otherwise provided herein, either party may at any time

hereafter acquire, possess, encumber, transfer, conveyor otherwise deal with any and all

classes of property, real or personal, tangible or intangible, or mixed, whether now owned

or possessed or hereafter acquired by either of them, without the joinder or consent of the

other party and with the same force and effect as if they were unmarried. If it shall

become necessary to pass, transfer or guarantee good title, a party shall, upon request of

,

the other, execute any deed, bill of sale or document evidencing a conveyance of

property. It is agreed between the parties that each of them will at any time or times

hereafter make, execute and deliver any and all of such other and further assurance as

either of said parties shall reasonably require for the purposes of giving full effect to

these agreements. No liability or expense shall be incurred by the party requested to

execute such document.

4. RELEASE OF PROPERTY AND EST ATE RIGHTS. Except as

otherwise provided herein, each party waives, relinquishes, renounces and quitclaims

unto the other any and all rights, title, interest and control he or she may now have or

shall hereafter acquire under the present or future laws of any jurisdiction, in, to, or over

the person, property or estate of the other arising by reason of their marital relationship or

under any previously executed instrument or will, made by either of them, including

dower, curtesy, statutory allowance, widow's allowance, homestead rights, right to take

in event of intestacy, right to any share as the surviving spouse, any right of election,

right to take against the last will and testament of the other or to dissent therefrom, the

right to act as administrator or executor of the estate of either, and any and all other right,

title or interest of any kind in and to any said property or estate of any kind of the other.

This provision shall not apply to any Social Security benefits the parties may have by

reason of their marriage to each other. In addition, except as otherwise provided herein,

each party waives, releases and renounces, and hereby conveys, quitclaims and assigns to

the other party and his or her heirs, executors and administrators, any right of inheritance

under a will executed by the other party prior to the date of this Agreement, and any

beneficial or administrative right arising under any trust created by the other party prior

to the date of this Agreement, any right to insurance proceeds payable by reason of the

death or disability of the other party, and any right to insurance proceeds payable by

reason of damage or destruction to any real or personal property owned separately by the

other party, whether such property was distributed under this Agreement or acquired

before or after the execution of this Agreement by the other party.

, ,

5. FUTURE DEBTS. Unless otherwise provided herein, neither party shall

hereafter charge or cause or permit to be charged to or against the other any purchase

which either of them may hereafter make, and shall not hereafter create any obligations in

the name of or against the other and shall never hereafter secure or attempt to secure an y

credit upon or in connection with the other, or in his or her name; and each of them will

promptly pay all debts and discharge all financial obligations which each may incur for

himself or herself and will hereafter hold the other free and halln1ess and indemnify the

other from any and all subsequent debts, obligations or liabilities which each may incur

or sustain,

6. COVENANT OF FULL DISCLOSURE. Each party covenants with and

represents to the other that he or she has made a full and fair disclosure of all property

and interest in property owned or believed to be owned by him or her during the course

of the marriage or acquired with marital property before or after separation and income

earned by the other. To the extent that marital property acquired with marital assets is

not disclosed and becomes known, such property shall be transferred by the non

disclosing party and become the sole property of the innocent spouse,

7. RESERVATION OF RIGHTS. The failure of either party to take advantage

of any default or violation of the covenants and conditions of this Agreement on the part

of the other shall not constitute a waiver thereof or relinquishment of the right to require

strict performance by the other party, Nor shall any custom or practice which may

develop between the parties in the course of performance of this Agreement be construed

to waive or lessen the right of either party to insist upon compliance with the provisions

hereof by the other.

8. ENFORCEMENT AND SUIT COSTS. The parties agree that the remedy at

law for any breach of this Agreement will be inadequate unless the provisions hereof

shall be enforceable by specific performance and accordingly, either party shall be

entitled to specifically enforce each and every provision of this Agreement The right to

specific enforcement of this Agreement shall be in addition to all other rights and

• ,

remedies either party may have at law or equity arising by reason of any breach of this

Agreement by the other party. In the event that one of the parties sues the other for a

breach of the Agreement, the non-breaching party will be entitled to recover all of the

costs, including attorney's fees, incurred by him or her as a result of his or her

enforcement of the Agreement.

9. MODIFICATION AND WAIVER. A modification or waiver of any of the

provisions of this Agreement shall be effective only if made in writing and executed with

the same formality as this Agreement. The failure of either party to insist upon strict

performance of any of the provisions of this Agreement shall not be construed as a

waiver of any subsequent default of the same or similar nature.

10. WAIVER OF LIABILITY FOR NECESSARIES. Each party warrants to

the other that he or she shall not seek from the other contribution for the payment of

expenses for necessaries that he or she may incur. Each party hereby warrants that any

time services are rendered to him or her that he or she shall provide actual notice to the

party rendering such services that he or she is legally separated from the other party and

that said provider should have no expectation of compensation or reimbursement from

the other by virtue of the parties' marriage. Each party agrees to indemnify, defend and

hold the other harmless from and against third party creditors who seek compensation

from the other party under the doctrine of necessaries under the present and future laws

of any jurisdiction

11. RECONCILIATION. In the event of reconciliation and resumption of the

marital relationship between the parties, the provisions herein of settlement and

disposition of property rights and other rights shall nevertheless continue in full force and

effect without the abatement of any telm or provision hereof, except as otherwise

specifically provided herein or as later agreed in writing by and between the parties.

Except as otherwise provided by this Agreement or by an amendment or modification of

this Agreement, performed in writing, executed by each of the parties and notarized after

• •

the date of this Agreement or the date of their reconciliation, no act on the part of either

party shall serve to modify the property rights of the parties as established in this

Agreement, and the rights of the parties to the property which is transferred, set over and

designated as property of either party shall remain separate property of that party in the

event that the parties should reconcile.

12. INTERPRETATION. No provisions of this agreement shall be interpreted

for or against any party because that party or the party's agent or legal representative

drafted the Agreement or the particular provision, and the parties hereby unconditionally

waive such defense or claim regarding this Agreement. This stipulation may be used in

court regarding any claims or defenses based on this Agreement.

13. EXECUTION OF DOCUMENTS. At the request of the other party, each

party shall execute and deliver any and all written instruments or documents reasonably

necessary or desirable to effectuate the purposes and provisions of this Agreement. Each

party shall also execute and deliver such other written instruments or conveyances

reasonably necessary or desirable to assist the other party in transferring any property

which he or she may now own or may hereafter acquire, or in transacting any business so

long as such party does not thereby become obligated or assume any responsibility under

such instrument or agreement.

14. PARTIAL INVALIDITY. If any provision of this Agreement is held to be

invalid or unenforceable, all other provisions shall nevertheless continue in full force and

effect.

15. BINDING EFFECT. Except as otherwise set forth herein, all of the

provisions of this Agreement shall be binding upon the respective heirs, next of kin,

executors and administrators of the parties. It is the whole and only agreement between

the parties, superseding any and all prior agreements and shall not be modified or varied

by parol evidence.

• •

16. 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.

17. JURISDICTION. Each party submits himself or herself to the jurisdiction

of the courts of the State of North Carolina in any future action brought by either party to

enforce the provisions of this Agreement.

MARITAL RIGHTS SETTLEMENT

PROPERTY DIVISION AND SETTLEMENT. In full settlement of all

property rights and claims between the parties, in satisfaction of North Carolina General

Statutes Section 50-20 et. seq., and pursuant to N.C.G.S. Section 50-20(d) and Section •

1041 of the Internal Revenue Code as non-taxable transfers, the parties agree as follows:

18. REAL PROPERTY. The parties are presently owners as tenants by the

entirety of that house and lot located at 3309 Cole Mill Rd., Durham, North Carolina,

27712, which said property shall hereinafter be referred to as "the residence." Husband

agrees to pay any and all debts, including the first and second mortgage, associated with

his occupancy of the residence. Husband agrees to refinance the residence into his name

alone; Wife agrees to transfer her interest in the residence by non-warranty deed to

Husband at the refinance closing. Husband shall thereafter be the sole and exclusive

owner of the residence, and the contents that they have agreed upon, and agrees to be

solely responsible for all future indebtedness and/or liability thereon, including the first

and second mortgage.

The parties are also owners of a lot located at The Springs, High Rock Lake. The

property shall be sold and the Wife shall receive all net proceeds. Husband shall pay all

taxes, fees and dues associated with this property until the sale, and shall indemnify and

hold Wife hat Iflless therefrom.

The parties are also owners of a time-share with Horizons at Orlando which shall

become the sole and separate property of the Wife; Wife shall be obligated to pay all fees

associated with said timeshare, and shall hold Husband other harmless therefrom.

19. PERSONAL PROPERTY. In settlement, adjustment and compromise of all

personal property questions and rights between the parties, the parties covenant and agree

that their property shall be divided as follows:

A. Automobiles. Husband is entitled to exclusive use and possession of the

2005 Nissan Quest and the 2004 Honda Reflex presently titled in Husband's name. Wife

relinquishes any and all interests she has in said vehicles to Husband upon execution of

this Agreement. Husband agrees to assume and an all liability associated with said

vehicles including the debt on the 2005 Nissan Quest. Husband shall indemnify and hold

Wife harmless from any and all liability associated with said vehicles.

Wife is entitled to exclusive use and possession of the 1998 Nissan Maxima

presently titled in Wife's name. Husband relinquishes any and all interest he has in said

vehicle to Wife upon execution ofthis Agreement. Wife agrees to assume any and all

liability associated with said vehicle. Wife shall indemnify and hold Husband harmless

from any and all liability associated with said vehicle.

B. Personal Property. The parties each acknowledge that all personal

property not specifically mentioned herein has or will be divided, within sixty (60) days

of execution of this Agreement, between the parties to the mutual satisfaction of each;

that this Agreement shall constitute a bill of sale for all property, whether specified or

not; and that each party does hereby transfer and assign all right and interest in all

property reserved to the other. Wife shall specifically receive as her sole and separate

property the following: the Thomas Kinkade painting, all of her jewelry, Michael's

television, Doni's furniture and television, the hottub, the Tiffany lamps in the kitchen

and bathroom, the boat, the larger front porch table and chairs, the vacuum, the video

and regular cameras, the drink machine, the glider rocker, the computer desk, the stand

alone computer, the camera printer, the blower, the weed eater, baby books, some

pictures, the Playstation, and household decorations as agreed between the parties. Also,

the parties agree to keep one set of coins for each child, and the Wife shall receive the

remainder.

•

C. Bank Accounts, Stocks, Bonds, Certificates of Deposit, Retirement

Accounts, Pensions, Etc. Each party shall retain any and all interest he or she may have

in any bank accounts, stocks, bonds, certificates of deposit, retirement accounts, pensions

and similar such accounts except that Wife shall retain any and all interest in the parties'

Morgan Keegan account as her sale and separate property and Husband agrees to execute

any and all document required to effectuate this transfer; each party relinquishes any and

all right he or she may have in any of the other accounts.

D. Ultimate Concepts. The parties are presently the owners of a jewelry

business run by the Husband from the residence. The business shall become the sale and

separate property of Husband and he shall indemnify and hold Wife harmless from any

liability associated therewith.

E. Season Tickets. Husband shall pay the outstanding balance for the NCSU

lifetime rights ($8,500.00) for the season tickets, which shall remain in joint names.

Wife shall retain the right to all four redzone tickets and shall thereafter pay the season

ticket price and the annual scholarship fee for these tickets; Husband shall retain the right

to use the other two tickets and shall pay the season ticket price for these tickets.

F. Marriott Credit Card Points. All Marriott Credit Card points shall

become the sale and separate property of the Wife.

20. PRESENT OUTSTANDING DEBTS. With respect to the debts owed by

the parties hereto prior to the time of their aforesaid separation, it is mutually agreed that

the Husband be and he does hereby assume liability for the payment of the unpaid

balances owing on those debts held in Husband's own name. Husband shall also be

responsible to pay all of debt on the home equity loan.

With respect to the debts owed by the parties hereto prior to the time of their

aforesaid separation, it is mutually agreed that the Wife be and she does hereby, assume

•

liability for the payment of the unpaid balances owing on those debts held in Wife's own

name.

In the event that either party shall be compelled to pay any bill or obligation of the

other party which the said party is obligated to pay under the provisions of this section,

then that amount shall be deducted from any money subsequently becoming due to the

other party under any provisions of this Agreement.

Each party hereto agrees to save and hold halmless the other party to this

Agreement from and against any and all liability in connection with any indebtedness

assumed under the terms of this Agreement and does hereby agree to indemnify the other

party against any and all hann, expense, loss or other damage in connection therewith,

including all costs of litigation involved in connection therewith or enforcement of this • •

proVISIOn.

21. EQUITABLE DISTRIBUTION. The property settlement as provided herein

is the act of Husband and Wife in equitably distribution their property as provided under

North Carolina General Statutes Section 50-20. Each release the other from any further

claim which would or might arise in favor of either under North Carolina General

Statutes Section 50-20, or any other state or federal law involving division of property

acquired during marriage.

22. TRANSFERS OF PROPERTY INCIDENT TO DIVORCE. The parties

hereto agree (I) that the transfer of property hereunder is related to the divorce; (ii) that

the transfer of property hereunder is a transfer incident to divorce and is related to the

cessation of the marriage; (iii) that the intent and purpose of this Agreement is for the

transfer of property hereunder to be tax free pursuant to the Internal Revenue Code and

the applicable provisions of North Carolina Law and for no gain or loss to be recognized

by either party as a result of such transfer; (iv) that the parties shall file formal election, if

necessary, or otherwise take such actions as may be required by applicable provisions of

the state or federal income tax laws and regulations to five full force and effect to the

aforesaid intent and purpose.

• •

CHILD CUSTODY AND SUPPORT PROVISIONS

23. CHILD CUSTODY. The parties have carefully weighed the question of the

custody of their minor children. The parties shall share physical custody of the minor

children as is provided below; the parties shall also share joint legal custody of the minor

children. The parties shall share physical custody as follows:

a. Husband shall be entitled to have the minor children in his care, custody and

control at all times agreed to between the parties.

b. In odd-numbered years, Husband will have the minor children for the

Thanksgiving holiday from close of school for the holiday through 5 p.m. on

Thanksgiving Day, and Wife shall have the minor children from 5 p.m. on

Thanksgiving day until Sunday following Thanksgiving day at 6 p.m. In the

even-numbered years, the Wife shall have the minor children for the

Thanksgiving holiday from the close of school for the holiday until 5 p.m. on

Thanksgiving day, and Husband will have the minor children from 5 p.m. on

Thanksgiving day until Sunday following Thanksgiving at 6 p.m.

c. In odd-numbered years, Wife will have the minor children from the close of

school for the Christmas holidays until 12 p.m. on Christmas day; Husband

will have the minor children from 12 p.m. Christmas day until the return to

school following New Years. In even-numbered years, the Husband will have

the minor children from the close of school for the Christmas holidays until 12

p.m. on Christmas day; Wife will have the minor children from 12 p.m.

Christmas day until the return to school following New Years.

d. In odd-numbered years, Husband will be entitled to have the minor children

on Memorial Day and July 4th, and Wife will be entitled to have the minor

children on Labor Day, Halloween and Spring Break. In even-numbered

years, Wife will be entitled to have the minor children on Memorial Day and

July 4th and Husband shall be entitled to have the minor children on Labor

Day, Halloween and Spring Break.

e. The parties may alter the holiday schedule as outlined above upon mutual

agreement.

• •

f. If the non-custodial parent is more than one (1) hour late for any scheduled

visitation without excuse or explanation, the custodial parent shall be free to

schedule other activities and the non-custodial parent will be deemed to have

waived that particular visitation.

g. The parent shall at all times keep the other parent infOi med of the

whereabouts of visitation (address and telephone numbers) if the same is to be

some place other than the residence of the parent.

h. In the event of a medical emergency during visitation, the parent shall

promptly notify the other parent.

i. Husband shall always be entitled to have the minor children with him on

Father's Day from 9 a.m. to 9 p.m. and the Wife shall always have the minor

children with her on Mother's Day from 9 a.m. to 9 p.m.

j. The parties shall evenly split visitation with the minor child on the minor

child's birthday and the parties will decide at lease one week in advance

regarding how they propose to make this split.

k. The other parent shall be the sitter of first choice for the children when the

other parent is absent and would otherwise employ or hire a sitter, family

member, neighbor, or friend for this task.

24. WELFARE OF CHILDREN. Neither Husband nor Wife shall attempt or

condone any attempt, directly or indirectly, to estrange the children from the other party

or to injure or impair the natural love and affection between the parent and the children,

and further agrees that neither will make any disparaging remarks about the other in the

presence of the minor children. The parties shall at all times encourage and foster in the

children sincere respect and affection for both parents. Each party shall immediately

advise the other as to any serious illness or other major development with respect to the

children. Each parent will be entitled to immediate access from the other, or from a third

party, to records and infolllJation pertaining to the minor children including, but not

limited to, medical, dental, health, school or educational records. Each party shall be

entitled to speak with the children by telephone at reasonable times and intervals when

the children shall be with the other party.

• •

25. CHILD SUPPORT. The parties each acknowledge that they owe a duty of

support for the minor children. In lieu of paying child support one to the other, the

parties agree to evenly split any and all costs for the minor children. Such costs include,

but shall not be limited to, all extracurricular activities (including, but not limited to

sports, music lessons, other lessons and/or tutoring, or other school-related activities) and

travel for the minor children. The party incurring such extracurricular expense shall send

a bill for the expense to the other party, and that other party shall have fifteen days to

reimburse the party who paid the expense.

26. TAX EXEMPTIONS AND/OR CREDITS. The parties agree that

Husband shall be entitled to claim as a dependency exemption the minor child Michael,

as well as any and all credits and/or deductions available, on his state and federal tax

returns for the 2008 tax year, and every year thereafter; Wife shall be entitled to claim as

a dependency exemption, as well as any and all credits and/or deductions available, the

minor child Doni on her state and federal tax returns for the 2008 tax year and every year

thereafter until Michael is no longer a dependent. For years when Michael is no longer a

dependent, the parties shall rotate the exemptions and/or credits for Doni so that each

party claims her every other year, with the Wife claiming Doni in the year following the

last year that Michael may be claimed as an exemption and/or credit.

27. MEDICAL INSURANCE AND MEDICAL EXPENSES FOR THE

CHILDREN. The Wife agrees to keep in full force and effect a policy of medical

insurance which shall provide coverage and benefits to the minor children of the parties,

and the Husband shall pay for the children's insurance. Further, the parties agree to

evenly divide all of the children's hospital, medical, dental, orthodontic, prescription drug

and psychological counseling expenses which are not covered by insurance. The party

incurring an expense shall furnish the other with a statement of all such expenses incurred

on the children's account, and the other shall promptly make payment to the payor (or the

health care provider) within 30 days of receipt of the bill or statement.

• •

•

28. POST·SEPARATION SUPPORT, ALIMONY AND ATTORNEY'S

FEES AND COSTS. Husband and Wife agree that neither is in need of support and/or

maintenance from the other. Both parties waive alimony and support pursuant to this

Agreement. Husband agrees to pay one-half of all attorney's fees and costs associated

with the preparation and negotiation of this Agreement and the separation, and agrees to

pay said amount upon the divorce.

29. MEDICAL INSURANCE FOR SPOUSE. Wife agrees to retain

Husband on her coverage of medical and dental insurance through her employer until the

parties are divorced or until such time as Wife may no longer do so, and Husband agrees

to pay for such coverage. Husband and Wife each agree to pay any and all of his/her own

un-reimbursed medical expenses.

30. TAX RETURNS. Husband and Wife shall file joint tax returns for the

2007 tax year but will file separate income tax returns (both federal and state) for the

2008 tax year and thereafter. The parties shall list the home mortgage interest on their

joint 2007 tax return; thereafter, if Husband shall claim the mortgage interest deduction

provided he has paid the mortgage interest.

The parties hereto acknowledge that this instrument is not a decree of separate

maintenance, but is simply an agreement between the parties.

In the event of an audit of any of the parties' joint tax returns, the parties agree to

cooperate with one another in responding to any questions on issues raised regarding the

same. Each party shall be responsible for and shall defend, indemnify and hold the other

harmless on any additional taxes owed on their respective incomes or on any deductions

or allowances related to their individual incomes.

31. VOLUNTARY EXECUTION. The provisions of this Agreement and

their legal effect are fully understood by the parties and each party acknowledges that this

Agreement is fair and equitable; that it is being entered into voluntarily; and that it was

not the restllt of any duress or undue influence.

• •

32. LEGAL REPRESENT A TION. In order to be fully advised and informed

concerning the legal effects of this Agreement, Wife has been represented by Martha

McKee, Attorney at Law, and Husband has represented himself.

IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on

duplicate originals, one of which is retained by each of the parties hereto, this the day and

year first above written.

Bradley Michael Dingler

• •

Holly Sarv Dingler

• • •


COUNTY OF DURHAM

, a Notary Public, certify that Bradley

Michael Dingler appeared before me this day and acknowledged the due execution of the

foregoing instrument for the purposes therein expressed.

Witness my hand and seal this :;) q day of_nHf,0:L((JiUI ____ , 2008. ,

Notary Public

My Commission Expires: f. /6./0


COUNTY OF DURHAM

• • : .,J,[ ... . ".,,-• •• .. . · .~.

PIJSL \c, /"'1 •

, a Notary Public, certify that Holly Sarvis

Dingler appeared before me this day and acknowledged the due execution of the

foregoing instrument for the purposes therein expressed.

Witness my hand and seal this ~ q day of Ap ri r ,2008.

Notary Public

My Commission Expires: 4. l/P. If)

.. ..





and/or cancellation. **** •• ****.****.*** •• *.** •• *.* ••• * •••••••••• * ••• ****.********.**.**-******.*._._-*-*--***-*****-*-*-*-***-*******-*****-

Filed For Registration: 05/08/200810:07:17 AM

Book: RE 5949 Page: 937-953


SEP-A 17 PGS $59.00


2008018789

Durham CountyFLANAGAN

, '''Ra:lv..H- -Iv STATE OF NORTH CAROLINA --:r CAdi \J.Jh;:;nlLd

I Cl.'3 '1\), (yy;;.1\ Sot. -;.-tc lP I:L COUNTY OF DURHAM

SEPARATION AGREEMENT AND PROPERTY SETTLEMENT

THIS SEPARATION AGREEMENT AND PROPERTY SETTLEMENT (hereinafter, the

"Agreement") made and entered into this 25th day of September, 2009, by and between Mollie

Maria Flanagan of Durham County, North Carolina (hereinafter called "Wife"), and Marc John

Hamlen of Durham County, North Carolina (hereinafter called "Husband");

RECITALS

WHEREAS, the parties hereto were married on August 21, 2004; and

WHEREAS, there were no children born of the parties' marriage; and

WHEREAS, the parties intend to separate on or before October 7, 2009, and have agreed

to live separate and apart from that point forward;

WHEREAS, each of the parties is more than eighteen (18) years of age, and they desire

to confirm their separation and to make agreements and arrangements in connection therewith,

including the settlement and adjustment of their property rights and other rights, responsibilities,

and obligations growing out of their marital relationship; and

WHEREAS, after mature consideration and judgment, each party having had the

opportunity to seek independent legal counsel from an attorney of his or her respective choice,

each party believes it is in his or her own respective best interests to enter into this written

Separation Agreement and Property Settlement, and each party having read the Agreement, full y

understands the terms, conditions, and provisions hereof and considers this Agreement to be fair, ,

just, reasonable, and equitable; and

NOW, THEREFORE, in consideration of the premises, the mutual promises and

undertakings herein contained and for other good and valuable consideration, the receipt and

FOR REGISTER OF DEEDS ington

• NC :1B4BPM

BK:6333 PG:307-329 FEE:$77,00 NS:$25,00

~ 10

, K;sH MMR--./ MJH

lof22

•


COUNTY OF DURHAM sufficiency of which is hereby acknowledged, each party hereby stipulates, agrees and covenants

with the other as follows:

L CONSIDERATION. The consideration for this Agreement is the mutual

promises, covenants and agreements herein contained.

2. SEPARATION. Except as otherwise stated herein, it shall be lawful for, and the

s;lid Husband and Wife shall at all times hereafter, live separate and apart, each free from the

marital control and authority of the other, direct or indirect, as fully as if each were single and

unmarried; to reside at such place or places and with such person or persons as each may desire.

All income and profits realized by either party shall be for his or her sole and separate use and

benefit, free from any and all control, restraint or interference, direct or indirect, of the other

party.

3. COVENANT OF NON-INTERFERENCE. Husband and Wife hereby agree

that each shall be free from interference, molestation, restraint, authority and control, direct or

indirect, of and by the other, as fully as if he or she were single and unmarried. Neither party

hereto shall, in any manner, directly or indirectly, hereafter disturb, annoy, molest, harass or in

any way interfere with the other, or the personal rights, liberties privileges or affairs of the other,

nor compel or endeavor to compel the other to cohabit or dwell with him or her. Each shall live

his or her own personal life as he or she may see fit, unrestricted in any manner by the marriage

and relationship previously existing between them and specifically shall not come onto the

residential premises of the other party after October 7, 2009, without express advance

I pellnission, except as otherwise explicitly indicated herein.

20f22

•

4. RESIDENCE. Husband and Wife may reside at such place or places and reside

or associate with such person or persons as each of them may deem fit or desire.

5. VISIT A TION. Neither Husband nor Wife shall call upon or visit the other except

by express invitation by one accepted by the other, except as otherwise explicitly indicated

herein.

6. EMPLOYMENT. Each of the parties may, for his or her separate benefit,

conduct, carryon and engage in any employment, business, trade or profession that he or she

may desire, choose or deem fit All income and profits realized by either party shall be for his or

her sale and separate use and benefit, free from any and all control, restraint or interference,

direct or indirect, of the other party.

7. RIGHT TO CONTRACT. Both Husband and Wife shall have the right to

contract and to be fully contracted with, independently of the other, as fully and to all intents and

purposes as if they had never been married.

8. MUTUAL RELEASE AND RELINOUISHMENT OF RIGHTS. Subject to

the provisions of this Agreement, each party has released and discharged, and by this Agreement

does for himself or herself and his or her heirs, legal representatives, executors, administrators

and assigns, release and discharge the other party from any and all causes of action, claims,

rights, or demands whatsoever in law or equity, which either of the parties had or now has,

against the other arising out of the marital relationship, except each party's claim for absolute

divorce based on one year's separation. Further, except as otherwise provided in this

Agreement, each party hereby waives, relinquishes, renounces and quitclaims unto the other any

and all rights, title, interest and control that he or she may now have or shall hereafter acquire,

under the present or future laws of any jurisdiction, in, to and over the person, property (whether

3 of22

H:SH MJH

•

now owned or hereafter acquired) or the estate of the other arising by reason of their marital

relationship or under any previously executed instmment or will, made by either of them,

including but not limited to, statutory rights, elections and allowances, dower, curtesy, statutory

allowance, widow's allowance, homestead rights, right to take in the event of intestacy, right to

any share as the surviving spouse, any right of election, right to take against the last will and

testament of the other or to dissent therefrom, right to act as administrator or executor of the

other's estate, or any insurance policies, disability policies, retirement accounts or pension plans,

and any and all other rights, title or interest of any kind in and to any said property or estate of

any kind of the other. Each party will, at the request of the other, execute, acknowledge and

deliver any and all instmments which may be necessary or advisable to carry into effect this

mutual waiver, quitclaim and relinquishment of all such interests, rights and claims.

Notwithstanding the foregoing, nothing in this provision shall apply to any real property retained

by the parties as tenants by the entirety so long as said estate by entireties continues, except as

otherwise explicitly contemplated in this Agreement. Neither party, however, waives and both

parties specifically retain any rights that either may have to any social security benefits by

virtue of their marriage. In addition, except as otherwise provided herein, each party waives,

releases and renounces, and hereby conveys, quitclaims and assigns over to the other party and

his or her heirs, executors and administrators, any right of inheritance under a will executed by

the other party prior to the date of this agreement, any beneficial or administrative right arising

under any tmst created by the other party prior to the date of this Agreement, any right to

insurance proceeds payable by reason of the death or disability of the other party, and any right

to insurance proceeds payable by reason of damage or destmction to any real or personal

M:sH M MJH

40f22

property owned separately by the other party, whether such property was distributed under this

Agreement or acquired before or after the execution of this Agreement by the other party.

9. WAIVER OF RIGHTS TO EQUITABLE DISTRIBUTION. The parties,

having full knowledge of the laws which govern the division of property and debt in cases of

divorce, including North Carolina's equitable distribution statute, make this Agreement in full

and complete satisfaction of any and all claims which Wife may have against Husband, and

which Husband may have against the Wife, including rights of equitable distribution, under

applicable present and future law, and instead make the provisions as set forth herein. Without

limiting the generality of the foregoing, the Wife acknowledges to Husband and the Husband to

Wife, that the provisions herein contained for his or her benefit are fair, equitable, adequate,

reasonable and satisfactory to her or him. Accordingly, each accepts the same in lieu of and in

full and final settlement and satisfaction of any and all claims or rights that she or he may now or

hereafter have against the other for distribution of property.

10. DIVISION OF ASSETS. Pursuant to N.C.G.S. § 50-20(d), the parties have

agreed and provided for a settlement and distribution of all of their marital property and divisible

property, as the terms "marital property" and "divisible property" are defined in N.C.G.S. § 50-

20, and have further agreed and provided for a settlement of all other property rights, whether

arising under any provision of the laws of the State of North Carolina or arising under any

provision of the laws of any other jurisdiction, as follows:

A. RESIDENCE AND PROPERTY. Husband and Wife hereby acknowledge that

they jointly own as tenants by the entireties a single family home located at 1707

Sassafras Hill Street, Durham, North Carolina, 27712 (hereinafter "Home"). The

Home is encumbered by a note which is secured by a first deed of trust and a

50f22

M:5H MJH

I

I

I

second mortgage on the property, both held by Wachovia Bank (hereinafter,

"Lender"). Both parties are obligors on the mortgage, the $2,200.00 monthly

payment of which includes taxes and insurance escrow. The Home Owner's

Association Fee is $25.00 per month at the time of the execution of the

Agreement and is included in the $2,200.00 payment indicated above.

B. It is the intention of the parties that Husband continue to live at the Home until

such time as the parties mutually agree to place the Home on the market for sale,

but no more than three (3) years from the date of this Agreement, unless the

parties mutually agree in writing to an extension of this timeframe. It is further

the intention of the parties that Wife purchase a new primary residence in which

to live. Husband hereby relinquishes any equity in and claim to Wife's new

primary residence and agrees to sign a quitclaim deed to effectuate such intent,

and so long as Husband executes the quitclaim deed as outlined in this Section

IO.B., Wife agrees to indemnify and hold harmless Husband from any liability

related to her new primary residence.

C. If Husband elects to move from the Home prior to the parties placing the Home

for sale, the parties will rent out the Home (unless otherwise contemplated in

Section 10.0. below) and use any rental income to defray equally for each party

the monthly mortgage payment that each party is required to pay. Unless

otherwise mutually agreed to between the parties, any such rental shall be handled

by a property management company of the mutual agreement of the parties, and

any fees associated with the use of such services shall be added equally to both

parties' monthly mortgage payment. It is further the intention of the parties

~3Jd MJH

60f22

. , . -

that so long as Wife does not move back into the Home as contemplated in

Section 10.D Wife and Husband continue to each pay their respective half of the

monthly mortgage payment of $1,100.00, as they have historically done since

purchase of the home, until such time as the parties sell the house (or rent the

home, as stipulated above in this Section). In the event that one party

(hereinafter, the "Defaulting Party") defaults on payment of their half of the

monthly mortgage for two months (whether consecutive or not), the Defaulting

Party hereby expressly relinquishes all equity in the Home to the other party

(hereinafter, the "Non-Defaulting Party"), and the Defaulting Party hereby

expressly agrees to promptly execute a quitclaim deed to secure the above

intentions. So long as the Defaulting Party executes the quitclaim deed as

outlined in the previous sentence, the Non-Defaulting Party agrees to indemnify

and hold hallnless the Defaulting Party from any liability related to said Home.

In such an event as outlined in this Section lO.e" the Non-Defaulting Party shall

be entitled to immediately enter the Home, remove the Defaulting Party or any

renters, as applicable, prepare the Home for sale on the market, and sell the

Home, obtaining all equity therein and paying off the outstanding notes to Lender.

In the event that the Non-Defaulting Party is forced by the housing market to sell

the Home for less than the amount owed on the notes (and any realtor

commissions and closing costs), then the Defaulting Party shall be required to pay

the Non-Defaulting Party the difference between the Home sale price and the

amount owed on the outstanding note, closing costs and realtor commissions.

Wife shall pay her $1,100.00 half of the monthly mortgage payment to Husband

70f22

t-1;jH MJH

I •

I

I I

I

I

I I

I I • •

I

I I •

I

I • •

no later than the 151 day of the month via check. Husband agrees to pay the

monthly mortgage in full and the homeowner's association fees monthly both on

time, as the parties have done thus far during their marriage. The parties further

agree to share in timely payment of other expenses relative to the home, including

but not limited to, repairs, maintenance and improvements. However, Husband

shall so long as he lives at Home be responsible for payment of water/sewer,

telephone, cable, satellite, security system, electricity and trash pickup. In the

event that Home is rented as contemplated herein, the renter shall pay such

water/sewer, telephone, cable, satellite, electricity and trash pickup.

D. Within six (6) months of the Effective Date of this Agreement, in the event that

Wife does not purchase a separate primary residence, and instead determines to

stay at the Home, then Husband shall vacate the house and relinquish all equity

and claim in the Home, past, present and future, sign a quitclaim deed to

effectuate such relinquishment, and Wife shall assume full payment of the

mortgage. In such an event, Wife shall refinance Home as soon as practicable, and

so long as Husband executes the quitclaim deed as outlined in this Section 10.0.,

Wife agrees to indemnify and hold harmless Husband from any liability related to

said Home.

E. In the event that the home becomes unoccupied pursuant to Section lO.e above,

the parties agree that they shall equally share in the timely payment of the

mortgage and Homeowner's Association Fees as outlined in Section IO.B above.

When the parties agree to sell the Home, all aspects of the sale, including but not

limited to asking price, reductions in asking price, acceptance of offers, etc., shall

N3H MJH

80f22

be mutually agreed upon by the parties. In the event the parties are unable to

agree on any decision related to the sale of the property, the parties shall follow

the recommendation of their listing real estate agent. At the closing of the sale of

the marital residence, the parties shall pay from the gross sales proceeds, the

outstanding encumbrances, including the mortgages, realtor's commission, and all

customary sellers' expenses, and shall equally divide the remaining proceeds or

liabilities. The parties shall each claim one-half of the mortgage interest and

property tax deductions related to the marital residence and any rental income,

as appropriate on their respective tax returns, provided that they equally

contribute to the mortgage payments.

F. MARITAL PROPERTY WAIVER. In accordance with NCGS § 50-20(d), the

parties hereby acknowledge and agree that the provisions herein for the

distribution of marital property are equitable and are fair, reasonable and

satisfactory to the Husband and Wife and are made in full and complete

satisfaction of any and all claims which each party may have against the other

party or the property of the other party under present and future laws relating to

the distribution of marital property. Each party accepts the provisions herein

made for them in lieu of and in full and final settlement and satisfaction of any

and all claims or rights that either party may now or hereafter have against the

other party for support and maintenance or for the distribution of property.

However, each party has relied upon the representations of the other party

concerning a complete and full disclosure of all marital assets in accepting this

property settlement, and it is understood and agreed that this provision shall not

I , MMF

90f22

•

,

I •

constitute a waiver of any marital interest either party may have in property

•

owned but not disclosed by the other party at the time this Agreement is executed.

Moreover, the failure of either party to disclose property shall constitute a •

I material breach of this Agreement which shall give rise to whatever remedies at

contract, law or in equity may be available to the other party . •

I I

G. PERSONAL BELONGINGS, HOUSEHOLD FURNISHINGS AND

VEHICLES. Each party hereby acknowledges sole ownership in the other party

of all his or her wearing apparel, personal ornaments and other personal effects as

well as all property owned by either party prior to their marriage, all property

inherited by either party during the marriage and all property given or loaned to

, either party (or to the family) by his or her relatives. The parties have equitably I

I divided all furnishings, appliances, jewelry, art, and other personal property ,

I •

located in or at the marital residence to their mutual satisfaction. Wife hereby

.

agrees to remove her property from the Home no later than December 31, 2009,

unless otherwise agreed to between the parties. In the event that Wife has not

removed her personal property from the Home by December 31, 2009, and the

parties have not mutually agreed to another, future date, for such removal, such

personal property shall become that of Husband and Husband shall be free to

I distribute, sell or discard such personal property as he sees fit. The parties further

agree that Wife shall be distributed her automobile, the 2004 Lexus RX300,

which is titled solely in her name and for which she has solely and individually

paid, free from any claim or right of Husband; further, Wife shall indemnify and

hold Husband harmless from any liability related to said vehicle. The Lexus is

10 of22

,

encumbered by a lien held by SunTrust in Wife's name alone, Hereafter, as has

been the case since purchase, Wife shall be responsible for payment of the lien

associated with said automobile, and shall indemnify and hold Husband harmless

from any liability related to said lien, Wife shall be distributed her automobile,

the 1983 Jeep Grand Wagoneer, free from any claim or right of Husband and shall

indemnify and hold Husband haJmless from any liability related to said vehicle,

Husband shall be distributed his 1997 Ford Contour, free from any claim or right

of Wife and shall indemnify and hold Wife harmless from any liability related to

said vehicle, The parties have mutually agreed to the distribution of the

furnishings, household items, personal property, and vehicles, and each party

hereby relinquishes all right, title, and interest in the furnishings, household items,

personal property and vehicles distributed to the other party,

Negligent Operation, Each party agrees to indemnify and hold the other

harmless from all liability arising by reason of their separate operation of any

vehicle, The parties acknowledge that they intend to obtain separate, individual

liability insurance policies for their respective vehicles and they agree to pay the

premiums on said policies as they become due,

H, RETIREMENT AND OTHER MONETARY ACCOUNTS. The parties

acknowledge and agree that they have each earned retirement benefits during the

marriage, including, but not limited to, 40 I (k), retirement and deferred

compensation benefits. Each party shall remain the owner of his and her

respective retirement accounts and all other accounts in his and her own name,

free from any claim or right of the other party. Each party waives and

H3H MJH

II of 22

•

I

I

I I

I ,

I •

I

relinquishes all right, title, and interest in and to the retirement and monetary

accounts of the other party. All joint accounts have been closed and divided to

the satisfaction of the parties.

L OTHER MONETARY ACCOUNTS AND SOLELY TITLED ASSETS. To

the extent the parties each have established separate bank or other monetary

accounts in his and her individual names, each party shall continue to own said

individual accounts, free from any claim or right of the other party. In addition,

Wife shall be the owner of all assets titled in her name only and Husband shall be

the owner of all assets titled in his name only, free from any claim or right of the

other party.

J. HEALTH INSURANCE. The parties acknowledge and agree that Husband

shall continue to remain covered on Wife's health and dental insurance policies so

long as: i) Husband and Wife are not yet legally divorced; and ii) Husband

.

continues to pay Wife $213.00 each month by the first day of the month. In the

event that Husband fails to pay Wife $213.00 each month for health and dental

insurance, then Wife shall deduct said $213.00 from the following month's

$1, I 00.00 mortgage payment on Home. In the event that Wife has taken

responsibility for the Home as outlined in Sections IO.C and 10.0 and Husband

fails to pay Wife $213.00 for health and dental insurance for two months (whether

consecutive or not) then Wife shall be entitled to immediately remove Husband

from her health and dental insurance policies.

120f22

H'0H MJH

•

K. COVENANT OF FULL DISCLOSURE. Each party covenants with and

represents to the other that he or she has made a full and fair disclosure of all

property and interests in property owned or believed to be owned by him or her.

11. DIVISION OF DEBTS. In addition to the distribution of debt set forth above,

the parties have agreed to the following division of marital debts in lieu of the equitable

distribution provisions of N.C.G.S. § 50-20 and applicable North Carolina case law. Each party

warrants that except as provided herein, neither party has incurred debt in the name of the other

party or failed to disclose debt on which the other party is an obligor, and the parties agree that

neither party shall incur debt in the name of the other party, or in the parties' joint names, after

the execution of this Agreement without the express consent of the other party. The parties have

no joint accounts and have used their individual assets pay all personal credit card, medical, and

other consumer debt incurred during or before the marriage. The parties hold one another

harmless from said individual personal debt.

12. FURTHER ENTITLEMENT. It is agreed that neither party shall hereafter have

any right or entitlement to the property distributed to the other party. To the extent that either

party may be deemed to have acquired any interest in the property distributed to the other party

by reason of their marriage to one another or the manner in which said property was titled, each

party hereby waives, relinquishes, transfers, and quitclaims any and all such interest.

13. TAX CONSEOUENCES OF TRANSFERS. The parties acknowledge that §

1041 of the Internal Revenue Code of 1986, as amended, applies to all transfers of property

under this Agreement. The parties specifically agree (1) that the transfers of property hereunder

are transfers incident to divorce and are related to the cessation of marriage; (2) that the intent

and purpose of this Agreement is for the transfer of property hereunder to be tax free pursuant to ,

13 of22

"-r;:5 }-{ MJH

I

,

I I , , i , !

§ 1041 of the Internal Revenue Code and the applicable provisions of North Carolina law, and

that no gain or loss be recognized by either party as a result of such transfer; and (3) that the

parties will file a formal election if necessary or otherwise take such actions as may be required

by applicable provisions of state or federal income tax law and regulations to give full force and

effect to the intent and purposes herein expressed. Each party agrees to provide the other party

i with such information and documents as may be necessary to determine a tax basis of propel1y

distributed or sold under this Agreement to enable each party to make a complete and accurate

tax reporting.

14. TAX MATTERS. The parties agree to file 2009 and 2010 income tax forms-

whether "married filing jointly" or "married filing single" as may be most beneficial to them

jointly (if eligible) or severally, in which case the party benefitting most from the chosen filing

status shall make the other party whole as if the other party had filed using their preferred status.

If, in connection with any joint income tax returns heretofore or hereafter filed jointly by

the Husband and Wife, there is any deficiency assessment, liability for the amount ultimately

detellllined to be due thereon, including penalties and interest, shall be shared equally

I (50%/50%) by the Husband and the Wife. Each party agrees to cooperate fully with the other in

I

I

I

I

the event of any audit or examination of the said joint tax returns by a taxing authority and agrees

to furnish to the party being examined or his or her designees, promptly and without charge, such

papers, records, documents, authorizations and information as may be reasonably appropriate in

connection with said audit or examination.

15. WAIVER OF ALIMONY. Each party hereby now and forever waives and

releases any and all claims and demands that either party may have against the other party for

post separation support, maintenance, alimony, or any form of spousal support, both post

1i5ld MJH

14 of 22

•

separation support and permanent, including allowances for attorney's fees and suit money

(except as explicitly indicated herein) in this or any other jurisdiction, which either now has or

may hereafter have or may in any way be or become entitled to by reason of their marriage to

one another, it being understood that this Agreement is a settlement and a total and complete

release of each party by the other of all such matters and charges whatsoever except as herein

otherwise provided.

16. FUTURE DEBTS. Unless otherwise specifically permitted by this Agreement,

neither party shall hereafter charge or cause or permit to be charged to or against the other party

any purchase which either of them may hereafter make, and shall not hereafter create any

engagements or obligations in the name of or against the other party and shall never hereafter

secure or attempt to secure any credit upon or in connection with the other, or in the name of the

other party; and each party will promptly pay all debts and discharge all financial obligations

which each may incur for himself or herself. Each party will hereafter hold the other party free

and harmless and indemnify the other from any and all subsequent debts, obligations, or

liabilities which each may incur or sustain, including but not limited to, claims for necessary

expenses.

17. REAL ESTATE TRANSACTIONS. Except as otherwise provided herein,

Husband and Wife each may, from this date and at all times hereafter, acquire, possess,

encumber, transfer, convey, dispose of or otherwise deal with any and all classes and kinds of

property, both real and personal, tangible or intangible, or mixed, whether now owned or

possessed or hereafter acquired by either of them, without the joinder or consent of and freedom

from the other party and with the same force and effect as if they were unmarried. The Husband

shall have no right, title or interest in and to any real or personal property owned by the Wife

IS of 22

I •

I

,

I

I

I

I

I from and after the date of the execution of this Agreement. The Wife shall have no right, title or

interest in and to any real or personal property owned by the Husband from and after the date of

execution of this Agreement. Pursuant to the provisions of N.C.G.S. * 39-13.4, either party shall

be free to convey real property or any interest therein without the consent or joinder of the other

party. If it shall become necessary to pass, transfer or guarantee good title, a party shall, upon

request of the other party, execute any deed, bill of sale or document evidencing a conveyance of

property. It is acknowledged and agreed to between the parties that each of them will at any time

.

or times hereafter make, executed and deliver any and all of such other and further assurances as

either of said parties shall reasonably require for the purposes of giving full force and effect to

these agreements. No liability or expense shall be incurred by the party requested to execute

such document or instrument.

18. PROPERTY OWNERSHIP. All items of property now owned or hereafter

acquired by either of the parties shall be owned, held and enjoyed by them independently of any

claim or right of the other with full power to dispose of the same as fully and effectively, in all

respects and for all purposes, as if he or she were unmarried. The parties agree to execute any

and all papers and instruments in writing, if. as and when such execution shall be necessary in

order to effectuate the express provisions hereof.

19. VOLUNTARY EXECUTION. Each party acknowledges that he or she has read

this Agreement, fully understands the terms, conditions, and provisions hereof and deems such

terms to be fair, just, reasonable and equitable. Further, each party acknowledges that this

Agreement is entered into of his or her own free will and volition and that no coercion, force,

pressure, or undue influence has been used against either of them in the execution of this

Agreement, either by the other party hereto or by any other person or persons. Neither party has

MM~ ~5ld

MJH 16 of 22

• ,

relied upon any representation or promise in making this Agreement except those expressly set

forth herein.

20, ADDITIONAL INSTRUMENTS, Each of the parties shall from time to time, at

the request of the other, execute, acknowledge, and deliver to the other party any and all further

instruments that may be reasonably required to give full force and effect to the provisions of this

Agreement.

21. WAIVER OF GRIEVANCES. Any conduct on the part of either party

occurring prior to the execution of this Agreement which may have constituted a basis for any

legal claim by either party against the other, is hereby waived and released and will not be used

by either party against the other in any future proceedings between them,

22. ENTIRE UNDERSTANDING. This Agreement contains the entire

understanding of the parties with regard to the subject matter addressed herein and there are no

representations, warranties, covenants, or undertakings other than those expressly set forth

herein.

23. MODIFICATION. This Agreement can be altered and amended only by further

written agreement duly executed by the parties. Any failure by either party to specifically

perform or to enforce perfOllllallCe exactly according to the letter of this Agreement or to take

advantage of any default or violation of the covenants and conditions of this Agreement on the

part of the other shall not constitute an alteration or waiver of the same by way of enlargement,

waiver, reduction, estoppel, relinquishment or otherwise, unless confirmed in writing by the

parties. Nor shall any custom or practice which may develop between the parties in the course of

performance of this Agreement be construed to waive or lessen the right of either party to insist

upon compliance with the provisions hereof by the other party. It is understood that the parties

8:SJd MJH

17 of 22

, I

I i

I

I

I ,

i may, by mutual written agreement, make temporary modifications from time to time as ,

,

I ,

I

I I

I

conditions require, but this Agreement shall nonetheless be binding upon the parties as written.

24. LA W APPLICABLE. All matters affecting the interpretation of this Agreement

and the rights of the parties hereto in relation to this Agreement shall be construed, governed and

controlled in accordance with the laws of the State of North Carolina.

25. RECONCILIATION. In the event Husband and Wife end their separation by

reconciliation and resumption of marital cohabitation, the executory provisions of this agreement

shall be thereby cancelled and rescinded, but all the provisions of this Agreement for settlement

of property rights shall, to the extent of complete or partial performance, nevertheless continue in

full force and effect without abatement of any term or provision hereof, unless and until such

provisions are cancelled or rescinded in a written agreement duly executed by both Husband and

Wife. The parties agree and acknowledge, however, that the provisions contained herein with

regard to the division of both real and personal property shall be deemed fully executed at the

time this Agreement is signed by both parties and shall not be affected by a reconciliation of the

parties. All real and personal property, tangible or intangible, transferred and assigned pursuant

to the property settlement provisions of this Agreement between the parties shall remain the sole

and separate property of the transferee as stated herein and will not be considered marital

property in the event of any reconciliation or resumption of marital cohabitation between the

parties. In the event of a reconciliation or resumption of marital cohabitation of the parties, if the

parties acquire property other than property specifically allocated in this Agreement, such

property will be subject, in the event of a subsequent separation, to any right or entitlement that

either party may have at that time pursuant to Chapter 50 of the North Carolina General Statutes,

or otherwise now or hereafter provided by law.

18 of 22

k2>H MlH

•

•

26. ENFORCEMENT. The parties agree that the remedy at law for any breach of

this Agreement will be inadequate unless the provisions hereof shall be enforceable by specific

performance and accordingly, either party shall be entitled to specifically enforce each and every

provision of this Agreement as allowed by North Carolina law. The right to specific

enforcement of this Agreement shall be in addition to all other rights and remedies that either

party may have at contract, law or in equity arising by reason of any breach of the Agreement by

the other party. Both parties acknowledge that neither party has a plain, speedy, or adequate

remedy to compel compliance with the provisions of this Agreement, that neither party shall be

required to repeatedly file suit for any breach of this Agreement, and that an order of specific

performance enforceable by contempt is an appropriate remedy for a breach by either party.

27. PAYMENT OF COUNSEL FEES AND EXPENSES UPON BREACH. In

the event that either party shall institute an action to enforce the provisions of this' Agreement or

upon breach by either party of this Agreement, the party determined to be responsible to the

other, whether such determination is made by adjudication or settlement, shall be solely

responsible for all attorney's fees, court costs, and related expenses incurred by the prevailing

party. In the event such detelIIlination is made by adjudication, the amount so awarded shall be

in the sole discretion of the presiding judge. Costs and expenses shall include, but are not

limited to, attorney's fees and expenses, reasonable travel costs, and deposition expenses. It is

the intent of this paragraph to induce both Husband and Wife to comply fully with the terms of

this Agreement to the end that no litigation, as between these parties, is necessary regarding the

areas which this Agreement addresses. In the event of litigation, it is the further intent to

specifically provide that the losing party pays all reasonable fees and costs that either side may

MM 190f22

/-!J--1 MJH

i

I

I

I ,

, ,

I

, I

!

I

incur. The parties agree that this Agreement is evidence of an indebtedness entitling the

prevailing party to an award of attorney's fees.

28. SUBSEQUENT DIVQRCE. This Agreement is unconditional and shall survive

any subsequent divorce decree obtained by either party, and no such decree shall terminate,

modify or otherwise affect the rights and obligations provided for herein. This Agreement shaH

not be incorporated either verbatim or by reference in any decree of absolute divorce

subsequently entered between the parties.

29. PARTIAL INVALIDITY. This is a non-integrated Agreement. It is the

intention and agreement of the parties that each provision of this Agreement is separate and

independent from every other provision of this Agreement. If any provisions of this Agreement

are held to be invalid or unenforceable, all other provisions shall nevertheless continue in fuH

force and effect.

30. BINDING EFFECT. Except as otherwise stated herein, all of the provisions of

this Agreement shaH be binding upon each of the parties and the respective heirs, next of kin,

executors, administrators and assigns of the parties.

31. ,JURISDICTION. Each party hereby submits himself or herself to the

jurisdiction of the courts of the state of North Carolina in any future action brought by either of

them to enforce the provisions of this Agreement.

32. FULL DISCLOSURE. The parties acknowledge and represent to each other that

they have made a fuH disclosure of all of their property, marital and separate, owned by either of

them, or jointly, and acquired during their marriage. A party to whom fuH disclosure has not

been made shall have the right to an equal division of any marital assets not disclosed by the

other party.

''--1:)f.-1 , MJH

20 of 22

33. REPRESENTATION. Both parties acknowledge that the Wife is represented by

Judy Whisnant and that the Husband has consulted with counselor has been given the

opportunity to consult with counsel prior to the execution of this Agreement and have read and

fully understand each and every provision of the Agreement, and both parties acknowledge that

the Agreement is fair, reasonable and equitable and is not the result of fraud, duress or undue

influence exercised by either party upon the other or by any other person or persons upon either. •

, •

•

IN WITNESS WHEREOF, the parties have signed, sealed, and acknowledged this Agreement in

•

triplicate originals. , I

Name

, .

, .

•

• •

•

..

21 of 22

M;S}-I MJH

I ,

I

,

I

i

I

I I

I ,

I

I

I ,

I

NORTH CAROLINA

DURHAM COUNTY

I, the undersigned, a Notary Public in and for said County and State, do hereby certify that Mollie Maria Flanagan, Wife, personally appeared before me this day, and I have seen satisfactory evidence of her identity, and acknowledged the due execution of the foregoing Separation Agreement and Property Settlement.

WITNESS hand and notarial seal this ~ 2009.

Notary Public:


NORTH CAROLINA

DURHAM COUNTY

I, the undersigned, a Notary Public in and for said County and State, do hereby certify that Marc John Hamlen, Husband, personally appeared before me this day, and I have seen satisfactory evidence of his identity, and acknowledged the due execution of the foregoing Separation Agreement and Property Settlement.

WITNESS hand and notarial seal this 2009.

Notary Public:

My Coml1)iss,ion Expires:

, '

" .. i".' - ' . ,

•

. ' , ,

.' . . '. ", . ' . . .... ""

220f22

H:SH MJH



200 E. MAIN STREET

DURHAM, NC 27701

PLEASE RETAIN YELLOW TRAILER PAGE It is part of recorded document, and must be submitted with original for re-recording .

and/or cancellation. ************************************************************************************************************************

Filed For Registration: 09/30/2009 12:18:48 PM

Book: RE 6333 Page: 307·329


SEP·A 23 PGS $77.00

NS: $25.00

Recorder: APRIL J WILLIAMS •

2009035110

Durham CountyMELIONES

• •

PREPARED BY: Susan H. Lewis, Attorney at Law

FOR ION REGISTER OF DEEDS . Covington COUNTY, NC

17 03:43:55 PM BK 6094 PG: 684-706 FEE: $77. 00

~ I

RETURN TO: Jon Meiiones, 501 Finsbury St. #302, Durham, NC 27703

SEP ARA nON AGREEMENT AND PROPERTY SETTLEMENT

BETWEEN

JON MELIONES, Husband

AND

THERESA MELIONES, Wife

DATED

SEPTEMBER 9, 2008

~. • •

-C--.- 1 ---- ----". • - ---------

, - ------- - - . ------4 ",,.'

• •

• NORTH CAROLINA

DURHAM COUNTY

SEPARATION AGREEMENT

AND PROPERTY SETTLEMENT

'M. THIS AGREEMENT, entered into this c:y day of September, 2008,

.

between JON MELIONES ("Husband"), whose address is 3939 Pleasant

Green Road, Durham, North Carolina 27705, and THERESA MELIONES

("Wife"), whose address is 1715 Faison Road, Durham, North Carolina

27705 (the "Residence").

WIT N E SSE T H:

The parties were lawfully married in Boston, Massachusetts on the

14th day of June, 1987.

There has been issue of the marriage, namely, NICOLAOS ,

MELIONES, born April 16, 1989 (the "Son"), and ALEXANDRA MELIONES, •

born March 30, 1991 (the "Daughter") (referred to herein collectively as the

"Children" and individually sometimes as each "Child"). The parties have .. .

.

also raised another child, RYAN LEVITAN (hereinafter "Ryan"), who is the

Wife's child from another marriage and who has attained his majority . •

The parties separated on April 28, 2008, and have continued to live

separate and apart since that date.

The parties wish to continue living apart and therefore they desire to

settle their respective support and property rights and agree on terms for

the custody, support, maintenance, and education of the Children.

•

• • •

---~. ---• • •

,

,

.. ---_.,'-- -'

Meliones: Separation Agreement and Property Settlement

Page 2

NOW THEREFORE, in consideration of the premises and the mutual

promises and undertakings hereinafter set forth, and other good and

valuable consideration, the parties agree as follows:

LIVING SEPARATE AND APART

1. Separation. The parties shall continue to live separate and apart in the

future, free from interference by each other. •

2. No Interference. Neither party will molest, harass, or interfere with the

other, or seek to compel the other party to cohabit or dwell with him or her

by any proceedings for restoration of the marital rights or otherwise, and

neither party will go on or about the premises of the other, or about the

other's place of work, without his or her consent.

PROPERTY SETTLEMENT

3. Personal Property. The parties hereby make the following disposition of

their personal property:

3.1. Household Effects. Except for the items listed in Schedule A

attached hereto (the "Schedule A Items"), all the furniture, furnishings,

household goods and appliances, fixtures and appurtenances, books,

jewelry, and works of art, and other items of personal property located at

the Residence shall constitute the sole and exclusive property of the Wife.

The Schedule A Items shall constitute the sole and exclusive property of the

Husband.

3.2. Automobiles. The parties own a (i) 2007 Jeep Cherokee (the

"Cherokee"); (ii) a 2003 Hummer (the "Hummer"); (iii) a 2002 Lexus (the

--_ .. ,,- -

•

• • ------ - - ----- --~ .. • • • •

. ----- . -" _ .. --- ,-- . ----- - --•


Page 3

"Lexus"); (iv) a 2007 Jeep (the "Jeep"); and (v) a 2001 Mitsubishi (the

"Mitsu bishi").

The Husband hereby releases any claim or right he may have to the

Cherokee, and agrees that the Cherokee shall be the Wife's sole and sepa

rate property from and after the date this Agreement is signed by both

parties.

The Wife hereby releases and relinquishes to the Husband all her

right, title, and interest in the Hummer, the Lexus, the Jeep, and the

Mitsubishi, and agrees that said vehicles shall be the Husband's sole and

separate property from and after the date this Agreement is signed by both

parties; provided, however, the parties agree that the Lexus belongs to .

Ryan, the Jeep belongs to the Daughter, and the Mitsubishi belongs to the

Son.

Both parties will execu te such car titles as may be necessary to give

full force and effect to this Agreement. The Wife wiiJ obtain automobile

insurance on the Cherokee at the end of the current paid up insurance

period.

3.3. Bank Accounts. The parties have closed all bank accounts

which have ever existed in their joint name.

Each party hereby waives any right, title, or interest he or she may

have or claim to any savings or checking account which the other party in

his or her sole name, or with any other person jointly, has had or may have

in the future in any bank anywhere. .

3.4. The Husband's Duke Retirement Plan. The Husband is the

owner of certain vested rights under the Fidelity Retirement Plans at Duke

University Medical Center (PVT Diagnostic PS Account No. 50796 and Duke

•

~-.-"--"

•

•

• •

•

- - - - _ ..... _.-" . ---


Page 4

. - --

University Account No. 82205) (the "Husband's Duke Retirement Plan"),

which will entitle him to receive certain sums of money upon retirement

----

from his employment. The parties hereby acknowledge that the Husband's

rights under the Husband's Duke Retirement Plan, as set forth above,_are

marital property within the meaning of the North Carolina Equitable

Distribution Act, N.C.O.S. Section 50-20, as amended. The parties have

agreed that the Wife shall receive sixty percent (60%) of the balance in the

Husband's Duke Retirement Plan on August 31, 2008, plus or minus any

passive increases or decreases attributable to such balance between August

31,2008, and the date of distribution. The Husband hereby agrees that he

will execute any and all documents which may be necessary to direct that

the administrator of the Husband's Duke Retirement Plan (or other person

or entity responsible for making payments to beneficiaries under the

Husband's Duke Retirement Plan) make and deliver to the Wife the

payments provided for herein. Upon the Wife's request therefor, the

Husband will demonstrate to the Wife that he has executed and delivered to

the administrator of the Husband's Duke Retirement Plan or other

responsible person or entity all documentation which may be necessary to

transfer benefits to the Wife hereunder or to assure that she will receive the

sums of money provided for hereunder. Furthermore, the Husband agrees

that he will timely execute a Consent Judgment containing all provisions

necessary to perfect the Wife's rights to the Husband's Duke Retirement

Plan hereunder under applicable State and federal law and regulation. In

exchange for the Husband's promises hereunder, the Wife agrees to, and

does hereby, waive any and all claim or right she may have now or may

become entitled to in the future to the Husband's Duke Retirement Plan or

,

,

._. __ . __ .-,


Page 5

. _ .. .. _-

to any rights or claims accruing to her thereunder or in connection

,

therewith. The Wife's attorney will be responsible for preparing all

documents hereunder, at the Wife's expense, and the Husband shall sign all

releases necessary for preparation of a QDRO,

3,5, The Husband's TIAA-CREF Retirement Account. The Husband

is the owner of certain vested rights under the TIAA-CREF Retirement Plan

at the University of North Carolina (the "Husband's TIAA-CREF Retirement

Plan"), which will entitle him to receive certain sums of money upon retire-

ment. The parties hereby acknowledge that the Husband's rights under the

Husband's TIAA-CREF Retirement Plan, as set forth above, are marital prop

erty within the meaning of the North Carolina Equitable Distribution Act,

N,C,G.S. Section 50-20, as amended. The parties have agreed that the Wife

shall receive sixty percent (60%) of the balance in the Husband's TIAA-CREF

Retirement Plan on August 31, 2008, plus or minus passive increases or

decreases attributable to such balance between August 31, 2008, and the

date of distribution, The Husband hereby agrees that he will execute any

and all documents which may be necessary to direct that the administrator

of the Husband's TIAA-CREF Retirement Plan (or other person or entity

responsible for making payments to beneficiaries under the Husband's

TIAA-CREF Retirement Plan) make and deliver to the Wife payments pro

vided for herein, Upon the Wife's request therefor, the Husband will

demonstrate to the Wife that he has executed and delivered to the admin-

istrator of the Husband's TIAA-CREF Retirement Plan or other responsible

person or entity all documentation which may be necessary to transfer

benefits to the Wife hereunder or to assure that she will receive the sums of

money provided for hereunder. Furthermore, the Husband agrees that the

- --- ----

•

--. -:-.-•

•

•

-- ... _--_ . -,._" ---


Page 6

-- - - -, ,- .. -

Husband will timely execute a Consent Judgment containing all provisions

necessary to perfect the Wife's rights to the Husband's TIAA-CREF

Retirement Plan hereunder under applicable State and federal law and

regulation. In exchange for the Husband's promises hereunder, the Wife

agrees to, and does hereby, waive any and all claim or right she may have

now or may become entitled to in the future to the Husband's TIAA-CREF

Retirement Plan or to any rights or claims accruing to her thereunder or in

connection therewith. The Wife's attorney will prepare all documents

hereunder, at the Wife's expense. The Husband shall sign all releases

necessary for the preparation of a QDRO.

3.6. The Husband's Morgan Stanley Tax Deferred Accounts. The

Husband is the owner of two tax deferred accounts with Morgan Stanley

("the Husband's Morgan Stanley Tax Deferred Accounts"). The Husband

hereby agrees that he will execute any and all documents that may be , .

necessary to transfer to the Wife sixty percent (60%) of the value of his

Morgan Stanley Tax Deferred Accounts. Upon the Wife's request therefore,

the Husband will demonstrate to the Wife that he has executed and

delivered to the administrator of the Husband's Morgan Stanley Tax

Deferred Accounts or other responsible person or entity all documentation

which may be necessary to transfer benefits to the Wife hereunder or to

assure that she will receive the sums of money provided for hereunder. The

Husband agrees that he will timely execute a Consent Judgment containing

all provisions necessary to perfect the Wife's rights in the Husband's

Morgan Stanley Tax Deferred Accounts hereunder under applicable State

and federal law and regulation. In exchange for the Husband's promises

hereunder, the Wife agrees to, and does hereby, waive any and all claim or

--;-c

•

• - --~ -- ------, - - - _ .. _----------------- ---- -----,-" .. _- , ... ,.-------------- ---"

• •

Meliones: Separation Agreement alld Property Settlement

Page 7

right she may have now or may become entitled to in the future to the .

Husband's Morgan Stanley Tax Deferred Accounts or to any rights or claims

accruing to her thereunder or in connection therewith. The Wife's attorney

will prepare all documents hereunder at the Wife's expense ..

3.7. The Morgan Stanley Cash Accounts. The parties own five cash

accounts with Morgan Stanley, which accounts are listed and valued as of

July 31,2008, on Schedule B attached hereto (the "Morgan Stanley Cash

Accounts"). Each party represents that he or she has made no withdrawal

from the Morgan Stanley Cash Accounts since July 31, 2008. The parties

agree that the Morgan Stanley Accounts shall be distributed as follows:

Items 3, 4, and 5 will be distributed to the Wife at no value on the condition

that the Wife applies one hundred percent (100%) of Items 3, 4, and 5

towards the Children'S college education. As to Item 1, the Husband will

receive the sum of NINETY THOUSAND DOLLARS ($90,000) from Item 1, .

and the Wife will receive the balance.; and as to Item 2, the Husband will

receive a sum equal to one-half of the value of Items 1 and 2 after deducting

the sum of NINETY THOUSAND DOLLARS ($90,000) and the Wife will

receive the other half of said sum. Schedule B contains an approximation

of those sums based on a July 31,2008, value. Upon the actual division,

the parties will adjust the sums to reflect increases or decreases in value

since July 31, 2008.

3.8. The Wife's Savings Account. The savings account presently

maintained in the Wife's name at Branch Bank & Trust, Account No.

6000377234, having a date of separation balance of THIRTY-FIVE THOU

SAND DOLLARS ($35,000), shall be distributed to the Wife in an equal

distribution of the parties' marital property.

•

•

• ----;--,---,-------- - .

• •

------ - - - - -•

•


Page 8

3.9. The Wife's Certificate of Deposit. The certificate of deposit in

the Wife's sole name at Branch Bank & Trust, Account No. 6000220585,

having a date of separation balance of SIXTY-FOUR THOUSAND FOUR

HUNDRED THIRTY-THREE DOLLARS ($64,433), shall be distributed to the

Wife in an equal distribution of the parties' marital property.

3.10. General Release of Claims Against Personal Property. Except

as provided herein specifically to the contrary, each of the parties shall own,

have and enjoy independently of any claim or right of the other party, all

items of personal property belonging to him or her and now in his or her

possession, or which may hereafter belong or come to him or her, with full

power to him or her to dispose of the same, as fully and effectually in all

respects and for all purposes, as though he or she were unmarried.

4. Credit Cards. The parties agree to close all charge accounts held in their

name jointly, and each party will return to the other any credit card he or .

she is now holding on any charge account in the other party's name.

Neither party shall have any right to make any charge on any charge

account in the other party's name, and a party who does make any such •

charge, shall reimburse, indemnify and hold harmless the other party for

any costs incurred by him or by her as a result of any such charge . •

5. Debts. Each party represents and warrants to the other that he or she

has not heretofore incurred any debts or obligations for which the other

party or the other party's estate may be charged or held liable, and each

party agrees to fully reimburse the other party or the other party's estate for

any liability so incurred and not disclosed hereunder.

The parties have a marital debt to the Internal Revenue Service and

the North Carolina Department of Revenue for taxes, penalties, and interest

--- ---,-

--- - -•

•

• --:-------• •

._--" .. - •

•


Page 9

,- --,'

on their joint federal and North Carolina tax returns for 2004 and 2005 (the

"Tax Debt"). The parties agree that the Husband shall be solely responsible

for the entire Tax Debt, including' penalties and interest, and that he will

indemnify the Wife and hold her harmless against any liability on the Tax

Debt.

6. The Residence. The parties are owners as tenants by the entirety of the

Residence. The following disposition shall be made of the Residence:

6.1. Occupancy. The Wife shall have the sole and exclusive right to

occupy the Residence until the sale of the Residence pursuant to Paragraph

6.3.

6.2. Financial Responsibility. During the period of the Wife's exclu

sive occupancy or possession of the Residence, the Husband shall be solely

responsible for the following charges and expenses owing or incurred in

connection with the Residence, namely: the monthly mortgage payment to

Branch Banking & Trust, the second mortgage payment to Branch Banking

& Trust, county and city personal and real property taxes and assessments,

homeowner's insurance and comprehensive liability insurance premiums,

any repair costs in excess of FIVE HUNDRED DOLLARS ($500), monthly .

landscaping charges, gas, water, electricity, and Time Warner Cable Package

(cable, ISP, and telephone). To the extent possible, the Husband shall .

arrange for the Husband to pay the utility bills by automatic draft.

(i.3. Sale of Residence. No later than October 15, 2008, the parties

will place the Residence on the market for sale and they agree to list the

Residence under a six-month listing with a mutually acceptable realtor at ,

an asking price recommended by said realtor. Both parties agree to cooper

ate fully in the realtor's efforts to market the Residence for sale. At the

------

-

---. -- -. --_._" -------~ - , "'---, --------- - - ,.-


Page 10

. ---_. _._-------- -' - -- - - -,._-- --- ----- -- ~----- -- --~

closing on the sale of the Residence, the first and second mortgage debt on

the Residence held by Branch Banking & Trust will be paid in full, and all

other charges _associated with selling the Residence. The parties will then

distribute the remaining proceeds as follows: fifty percent (50%) to the

Husband and fifty percent (50%) to the Wife. The parties agree to accept

any cash offer for the sale of the Residence that the Husband chooses to

accept, provided, however, if the Husband chooses to accept an offer that

results in a net loss on the closing statement at sale, the Husband agrees to

pay one hundred percent (100%) of said loss and to indemnify the Wife and

hold her harmless against any such loss. Furthermore, the Husband agrees

to guarantee that upon the sale of the Residence, the Wife will receive at

least TWENTY THOUSAND DOLLARS ($20,000) at the closing on the sale.

For example, if the net proceeds of sale are THIRTY THOUSAND DOLLARS

($30,000) the Wife will receive TWENTY THOUSAND DOLLARS ($20,000) and

the Husband the balance. If the net proceeds are less than TWENTY

THOUSAND DOLLARS ($20,000), the Wife will receive one hundred percent

of the proceeds and the Husband will make up the difference between

twenty thousand dollars and the lesser net proceeds out of his own funds,

up to a total of $20,000. If there are funds due at closing, the Husband will

pay the Wife $20,000 in addition to such funds due at closing.

7. Free Enjoyment and Alienation. Each party shall hereafter own, have

and enjoy independently of any claim or right of the other party, all items of

real or personal property, tangible or intangible, now or hereafter belonging

to him or her, in his or her own name singly or with a third party, and now

or hereafter in his or her possession, with full power in him or her to dis-

• -~: -~--:--- ~~- -- -------------~---. -- --~- - --------,------ , - -------- -------,--~--

•


Page 11

pose of the same as fully and effectually in all respects and for all purposes

as though he Of she were unmarried.

Each party may at all times hereafter purchase, acquire, hold,

possess, encumber, convey, or otherwise dispose of any and all kinds and

classes of property, both real and personal, in his or her name, as though

unmarried, and free from the consent, joinder, or interference of the other

party, in the same manner and to the same extent as though they had never

been married. Each party agrees to execute, acknowledge, and deliver to

the other at his or her request, whatever instruments as may be reasonably

necessary to enable the other party conveniently to dispose of and convey

any of his or her property, either real or personal, but this obligation shall

not be construed to impose on the accommodating party any personal

liability with respect to warranty of title or otherwise, and shall be required

only to the extent reasonably necessary for one party further to release his

or her interest in the property of the other and further to evidence his or her

consent to such disposition of the property by the other.

8. Transfer of Property Without Joinder of Spouse. It is understood and

agreed that, in any sale, transfer or conveyance by either of the parties

hereto of any real or personal property now owned or hereafter acquired by

such party, it shall not be necessary in order for the grantee or transferee to

have a good title that the other party hereto sign and execute the deed, deed

of trust, mortgage, bill of sale or other instrument of transfer for the sale or

conveyance of said property. Each of the parties hereto hereby releases to

the other all right, title, and interest that he or she may now or hereafter

have in any real or personal property now owned or hereafter acquired by

the other, and, with regard to any such property, each shall be in the same

---.--~ -------• •

•

•

- --" - ---_.- - - - ---, -"-------.--- .. -


Page 12

- ------------_.- - - ,- _.-- ---------

position and status as if such party were single and unmarried, and as if •

.--- -------

the marriage between the parties had never taken place. However, each of

the parties hereto will, at any time or times hereafter, make, execute and

deliver any and all further instruments as the other party shall reasonably

require for the purpose of giving full effect to the covenants, provisions, and

agreements of this Paragraph 8.

9. Waiver of Estate Rights.

9.1. Release of Rights by Husband. The Husband does hereby

waive, quitclaim, discharge, release and relinquish unto the Wife, her heirs,

executors, administrators and assigns: (1) all and every right to a distribu

tive share of the estate of the Wife upon her death; (2) all and every right to

elect to take a life estate in real estate belonging to the Wife upon her death;

(3) all and every right to dissent from any will of the Wife upon her death; •

(4) all and every right to a year's allowance upon the death of the Wife; (5)

all and every right to administer upon the estate of the Wife upon her death;

and (6) all other rights or interests in property, both real and personal,

which the Husband now has or may hereafter acquire, rising out of or ac

cruing to the Husband by reason of the death of the Wife under the existing

or fu ture laws of any jurisdiction whatsoever.

9.2. Release of Rights by Wife. The Wife does hereby waive, quit

Claim, discharge, release and relinquish unto the Husband, his heirs,

executors, administrators and assigns: (1) all and every right to a distribu

tive share of the estate of the Husband upon his death; (2) all and every .

right to elect to take a life estate in real estate belonging to the Husband

upon his death; (3) all and every right to dissent from any will of the Hus

band upon his death; (4) all and every right to a year's allowance upon the

• -------, •

,

-- -~ - • . -_ ..


Page 13

-----~ - - ------, -- -- -- ------ - -

death of the Husband; (5) all and every right to administer upon the estate

of the Husband upon his death; and (6) all other rights or interests in

property, both real and personal, which the Wife now has or may hereafter

acquire, rising out of or accruing to the Wife by reason of the death of the

Husband under the existing or future laws of any jurisdiction whatsoever.

10. Waiver of Rights Under N.C.G.S. Section 50-20. Each party has been

advised of his or her rights under North Carolina law to an equitable distri

bution of the parties' marital property. Each party acknowledges that the

property division contained in this Agreement is fair and equitable in light

of all the circumstances of the parties' situation as of the date hereof and of

their marriage. In consideration for the provisions of this Agreement and ,

the distribution of marital property to be made to the parties hereunder,

each party hereby waives any and all claim or right to an equal or equitable

distribution of the parties' marital property pursuant to N.C.G.S. Section

50-20, as amended, or under the present or future laws of any state whatso

ever and further agrees to accept and accepts the property settlement terms

of this Agreement as a full, fair, final and complete settlement of any and all

property rights which such party has had, has or may acquire in the future

by virtue of or arising ou t of his or her marriage to the other.

11. THERE IS NO PARAGRAPH 11.

12. Alimony.

12.1 Periodic Alimony. The Husband shall pay to the Wife, as

alimony for her support and maintenance, the monthly sum of THREE ,

THOUSAND DOLLARS ($3,000) on the first (1st) day of each month, begin-

ning with the first (I st) day of the October following the signing of this

Agreement and continuing until and including the closing on the sale of the

• -.-.---' .;

•

- - --~ . -_.- ..- ----', .' ... _-


Page 14

. - --- ._----- ,_. - - -,

Residence pursuant to Paragraph 6.3, and thereafter the sum of FOUR

THOUSAND TWO HUNDRED FIFTY DOLLARS ($4,250) a month on the first

(1st) day of each month until October 1, 2018, at which time all the •

Husband's obligations to pay alimony to the Wife shall terminate absolutely

and forever. The Husband's obligation to pay any alimony, support or

maintenance to the Wife shall terminate on the first to occur of any of the

following events: (i) the Husband's death; (ii) the Wife's death; (iii) the Wife's

remarriage; or (iv) the Wife's "cohabitation" within the meaning of N.C.G.S. § ,

50-16, unless sooner terminated on October 1, 2018, under the preceding

sentence. All payments to be made by the Husband under this Paragraph

12.1 shall be made by direct deposit into a bank account designated by the

Wife.

12.2 Health Insurance and COBRA Coverage. The Husband shall

pay as additional alimony to the Wife the cost of maintaining her as a

dependent on the COBRA health insurance available to her by reason of the

Husband's employment at Duke University for a period of thirty-six (36)

months following the parties' divorce.

13. Waiver of Alimony and Support Claims. Except as provided specifically

to the contrary in Paragraph 12, entitled "Alimony," the Wife, in considera

tion of the provisions of this Agreement, hereby releases and relinquishes

any claims or rights she may have or may hereafter acquire to support,

alimony or maintenance. The Wife further agrees that she will not incur or

contract any debts hereafter for her own benefit upon the credit of the

Husband, and neither party shall be responsible for the payment of any

de bts hereafter created by the other.

•

• •

• ~ ~ --~ -- ---~ ----~ --.-'-- --..,.-,-.. -- ~- - - ~----- -- ~--~- - - - ,

•


Page 15

CUSTODY AND CHILD SUPPORT

14. Joint Custody. The parties shall have joint legal custody of the

Daughter. The Daughter, who shall attain her majority in less than six (6)

months from the date of this Agreement, shall reside with each of her

parents according to a schedule determined by the Daughter.

15. Child Support. Neither party shall be required to pay direct child •

support to the other. The Husband's payments under Paragraph 6.2 of this

Agreement shall be deemed to fulfill any obligations he might have to pay

child support to the Wife.

16. Health Insurance. The Husband represents that as of the date of this

Agreement he is presently carrying for the benefit of the Wife and the Chil

dren Major Medical Insurance Coverage under the Duke Select group

insurance plan at Duke University Medical Center the "Husband's Health

Insurance"). So long as the Husband continues in the employ of Duke

University Medical Center and the group insurance plan is in effect there,

the Husband shall maintain the Wife's health insurance (i) for the Wife so

long as the parties remain married, and (ii) for each of the Children until

they respectively are no longer eligible for coverage under the terms of the

group insurance plan.

17. Uninsured Medical Expenses. The Husband will pay all reasonable

medical and dental expenses for each Child until such Child attains the age

of eighteen (18), marries, or otherwise becomes emancipated. All the

Husband's obligations under this Paragraph 17 shall terminate on the

Husband's death.

18. Taxes.

•

•

- - _--.:._._---, ------ .. - ----;-. 1- - ._- ----- ----- . ---_. , .

,


Page 16

18,1. Joint Tax Returns. The Husband agrees to indemnify the Wife .

and hold her harmless against any liability on any joint federal or state tax

return ever signed by the parties.

18.2. Tax Consequences of Alimony Payments. The parties are

aware that, under the income tax laws, if the parties file separate returns

the Wife is required to include in her income for income tax purposes all

sums paid to her under Paragraph 12 above, and the Husband is entitled to

deduct such payments in their entirety from his income tax returns.

18.3. Dependency Deduction. For any taxable year in which the

parties either (i) elect not to file a joint return or (ii) are not eligible to file a

joint return, the Husband shall be entitled to the dependency exemption for

each Child, so long as the Child (respectively) qualifies as a dependent

within the meaning of Section 152 of the Internal Revenue Code.

18.4. Mortgage Interest and Taxes. As long as the Husband is .

making the payments required under Paragraph 6.2, he shall be entitled to

claim one hundred percent (100%) of all tax deductions associated there

with.

19. Future Cooperation. Each party shall, from time to time, and at any

time hereafter, take any and all steps and execute, acknowledge and deliver

to the other party (or his or her appointed representative) any and all future

instruments, documents, and assurances that the other party may reasona

bly require for the purpose of giving full force and effect to the provisions of

this Agreement.

20. Choice of Law. This Agreement shall be interpreted and governed in

accordance with the laws of the State of North Carolina.

,

-.-'--';','- -' •

•

_ ... . '--..... --


Page 17

-- . ... - -- - "1-

21. Divorce. This Agreement shall not be construed to prevent either party

from suing for divorce in any competent jurisdiction. No decree so obtained

. shall in any way affect the terms hereof. This Agreement shall survive any

such decree and shall not be merged or incorporated into any decree that is

entered.

22. Binding on Estates. Except as otherwise provided herein, the provi

sions of this Agreement shall be binding on the respective heirs, executors,

and administrators of each of the parties.

23. Life Insurance. The Husband agrees to maintain the Wife as benefici

ary of term life insurance in an amount sufficient to pay his alimony obliga

tions under this Agreement one day before his death. The obligations of the

preceding sentence shall survive the Husband's death. The Husband agrees

to sign a release au thorizing the Wife to gain access to the beneficiary

designations on his group term life insurance at Duke University to verify

the Husband's compliance with the requirements of this Paragraph 23.

24. Release of Claims. Except as otherwise herein expressly provided, the

parties shall, and do hereby, mutually release, remise and forever discharge

each other from any and all actions, suits, debts, claims, demands, and

obligations whatsoever, both in law and in equity, which either of them ever

had, now has, or may hereafter have against the other or against any third

party, upon, or by reason of, any matter, cause or thing, arising out of the

marital relationship of the parties and occurring prior to the date of the

execution of this Agreement.

25. Representation and Advice. Each party acknowledges that he or she

has been represented by an attorney or his or her own choosing and

selection in connection with the execution of him or her of this Agreement,

--.' -•

•

.C-' --1- ---'------.----- - - - --" ---- - ---- , .------------ -1-

Meliones: Separation Agreement' and Property Settlement

Page 18

and that he or she has been fully informed of his or her legal rights by such

attorney, and as to the effects of the provisions of this Agreement, and that

the provisions of this Agreement are fair and adequate in all respects. The

Husband has been represented by Susan H. Lewis, Attorney at Law of

Chapel Hill, North Carolina. The Wife has been represented by Rose

Mackritis, Attorney at Law of Durham, North Carolina.

26. Breach. Either party shall be entitled to recover his or her reasonable

attorney's fees and costs if a court of competent jurisdiction finds the other

to be in breach of this Agreement.

27. Specific Performance. The provisions of Paragraph 6.2 and Paragraph

12 shall be subject to the remedy of specific performance.

28. Full Disclosure. The parties respectively acknowledge that each fully

understands the facts underlying this Agreement and that each party has

fully disclosed to the other his or her complete financial worth, and that

each of them is signing this Agreement freely and voluntarily.

29. Entire Agreement and Modification. This Agreement constitutes the

entire understanding of the parties. There are no representations or war-

ran ties other than those expressly set forth. No modification or waiver of

any of the terms hereof shall be valid unless in writing and signed by both

the parties.

IN WITNESS WHEREOF, the parties have set their hands and seals

to two counterpar s of this Agreement, each of which shall constitute an

JON

__ aay of September, 2008.

•

~~q(j~!1~ ... ::-::-::...." __ (SEAL) THERESA MELIONES

, •

---O-'-~. --_.--- ---•

-_.------ ---- ------ ---~~. - - ---

•

•

,

• . \\ c 'I-" .'

"') .' • • . ., ,

. -, . , . . . , .-, "


Page 19

NORTH CAROLINA

ORANGE COUNTY NOTARY

county and state, do hereby certify that JON MELIONES personally

appeared before me this day and acknowledged the due execution of the

foregoing instrument. q"'-Witness my hand and notarial seal, this ___ day of September,

2008.

NOTARY PUBLIC

My commission expires: COUNTY OF: __ 0-,--(_' ----'

~- ~/- 2",0

* * * * * * * * * * * * * * * * * * * * * * * * * *

NORTH CAROLINA

ORANGE COUNTY NOTARY

I, U,5AJ w.. L~;5 , a Notary Public of and for said

county and state, do hereby certify that THERESA MELIONES personally

appeared before me this day and acknowledged the due execution of the

foregoing instrument.

Witness my hand and notarial seal, this __ day of September,

2008 . •

NOTARY PUBLIC •

•

expires: COUNTY OF:

• • •

~.'--,--

•

._.- ----~ --_. -_.-


Page 20

-~---.--~~ .

SCHEDULE A

1. Male chest of drawers in master bedroom.

2. Male nightstand in master bedroom.

- .. - --_. -----1--

3. All items from upstairs deck, including lounges and tables.

4. All items from family room except plasma TV (stays at Residence until

sale).

5. All items from kitchen eating area, including block table and red chairs

(stays at Residence until sale).

6. Cast paper artwork from dining room.

7. Wine refrigerator.

8. Half the wine glasses, china.

9. Plasma TV from living room.

• , . .'

---;-'---'-~--• •

•

I~--- ---------- ------ --


Page 21

SCHEDULE B

1. Morgan Stanley No.

,

640-065914 JTWROS

$121,737.21 as of 7.31.08


640-065915 JTWROS

$135,776.67 as of 7.31.08


640-058592 (529)

(Wife's name) $1,417.21


640-058592 Wife as

Custodian for Daughter

$15,175.17

5. Morgan Stanley No .

640-058593 Wik as

Custodian for Son

$16,484.17

HUSBAND

90,000

83,756.84

_.- .--------- ----- ---

•

WIFE

Balance

" $83,756.84

Balance

o

o

o




•


and/or cancellation. ******.**.************************************.*************************************************************************

Filed For Registration: 11/17/200803:43:55 PM

Book: RE 6094 Page: 684-706


SEP-A 23 PGS $77.00


•

2008044039

real separation agreements from - rosen · while very informative, is quite a chore, so i've...

Documents