Separation Agreement

STATE OF NORTH CAROLINA COUNTY OF WAKE

SEPARATION AGREEMENT AND        PROPERTY SETTLEMENT

THIS SEPARATION AGREEMENT AND PROPERTY SETTLEMENT (hereinafter this “Agreement”) made this _____ day of , 2021, by and between KATHERINE A. FRYE (hereinafter referred to as “Wife” or “Mother”) and KEVIN J. SMITH (hereinafter referred to as “Husband” or “Father”);

WITNESSETH

THAT WHEREAS, the parties hereto were married on August 8, 2001 and separated on or about June 4, 2021, with the intent to live separate and apart permanently; and

WHEREAS, there was one child born of the marriage of the parties, namely:  Ellenora A. Smith born on October 23, 2008.

 WHEREAS, each party is more than eighteen years of age and each desire to enter into this Agreement for the purpose of confirming the parties’ separation, settling the issues stated in the Agreement including spousal support and property rights and distributing marital and divisible assets and debts; and

WHEREAS, after mature consideration and judgment, each party having had the choice and 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 Agreement and each party considers this Agreement to be fair, reasonable and equitable; and

WHEREAS, each party has read this Agreement, fully understands the terms, conditions and provisions hereof and deems such to be fair, just and equitable; 

NOW THEREFORE, to that end, and for and in consideration of mutual covenants, promises and agreements herein declared and set forth, and in compliance with N.C. Gen. Stat. § 50-20(d), the parties agree as follows: 

ARTICLE I

SEPARATION

1. GENERAL.  From the date of separation, it has been and shall continue to be lawful for Husband and Wife to live separate and apart, each free from the marital control and authority of the other, direct or indirect, and in the same manner and to the same extent as though they had never been married.

2. COVENANT OF NON-INTERFERENCE.  Each party shall have the right to reside at such place or places and reside or associate with such person or persons as each of them may deem fit or as each of them may desire.

3. VISITATION.  Except as otherwise provided herein, neither Husband nor Wife shall call upon or visit the other except by express invitation by one and  accepted by the other. Further neither party will take any steps to monitor the activities or whereabouts of the other. 

ARTICLE II

PROPERTY SETTLEMENT

EQUITABLE DISTRIBUTION.  Pursuant to N.C. Gen. Stat. § 50-20(d), the parties have agreed and provided for a settlement and distribution of all their marital and divisible property and debt, as the terms “marital property” and “divisible property” are defined in N.C. Gen. Stat. §§ 50-20(b)(1) and 50-20(b)(4), 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.  Except as allowed herein, each party releases the other from any further claim which would or might arise in favor of either under N.C. Gen. Stat. § 50-20, or any other state or federal law involving the division of property acquired during the marriage now in effect or hereinafter passed or decided.  The parties’ property settlement and distribution is specifically set out herein.

THE MARITAL RESIDENCE

At the time of their separation, the parties were the owners as tenants by the entirety of a home and lot located at 4700 Wood Valley Drive, Raleigh, NC 27613 (Wake County) (hereinafter the “Marital Residence”).  This property was encumbered by a mortgage with Mr. Cooper and home equity line of credit with First Citizens’ Bank; both debts are both parties’ names.  The Marital Residence shall be and become Wife’s sole and separate property, and Husband hereby waives any and all right, title, and interest in said Marital Residence. After the separation, the Wife  will refinanced the mortgage into a debt into her individual name, and Husband will cooperate with her refinance such that the house deed will be placed solely into Wife’s name. Wife shall be responsible for all mortgage payments, home equity line debts, taxes, insurance costs, and any other debts or liabilities associated with the Marital Residence as of the date of separation.

The parties agree that Husband shall be entitled to 50% of the net equity based on an appraisal performed as part of Wife’s refinance. Wife agrees that she will have a cash out refinance such that she can pay Husband as much of the equity as feasible. The parties acknowledge that it is anticipated that Husband will receive at least $80,000 based on a appraised value of $600,000 for the Former Marital Residence. To the extent that the appraised value is higher or lower than $600,000, Husband will be entitled to 50% of the increase. For example, if the Former Marital Residence appraises for $620,000, Husband will be due $70,000 from the cash out refinance. This sum will be deducted against Husband’s distributive award as noted further below.

The parties also acknowledge that the current Covid climate has created some abnormally high values on assets especially home values. The parties agree to make their best effort to agree on a lower value should they believe the appraised value is substantially out of line with the most recent appraisal on the house.

Wife shall refinance both the main mortgage and the home equity line of credit as part of any refinance. Any escrow or refunds provided by either the mortgage company or the home equity line of credit shall be Wife’s sole property, and Husband will cooperate with signing any jointly titled checks so that Wife may deposit them.

Wife shall be responsible for the preparation of a Non-Warranty Deed transferring title from tenants by the entirety to Wife’s sole name. Husband will sign this deed upon Wife’s request, and she will hold the deed in trust until it is needed by the closing attorney to effectuate the refinance.

To the extent that Wife is pulling cash out of the home to pay Husband, the parties agree that the closing attorney shall have the specific authority to provide those funds directly to Husband as they become available after any right of recission.

After the execution of this Agreement, Husband acknowledges that Wife will change all access methods to the Former Marital Residence. In her discretion, she may provide access codes to the garage or house; however, at no time will he enter the residence without her written permission in advance. 

TANGIBLE PERSONAL PROPERTY

Wife shall have as her sole and separate property her clothing, personal effects, adornments, jewelry, toiletries, and any and all other items of household goods, furniture and other personal property found in the Marital Residence except as noted below, and Husband hereby waives any and all right, title and interest in the same. 

Husband shall be entitled to all items in his workshop, the pool table and accessories, engagement ring/wedding band of Wife, weight bench and accessories (excluding the dumb bells), various tools out of the garage (except the ladder and a reasonable tool set for Wife’s use), and any other personal items located in the home such as yearbooks, snowboard, premarital artwork, etc. that are located by Wife.

The parties acknowledge that these items will remain in the former marital residence until such time as Husband can remove them; however, he will make his best effort to remove them prior to June 1, 2022.

VEHICLES

The parties are the owners of the following vehicle:

2018 Toyota 4Runner

The 2028 Toyota 4Runner, which Husband drives, is titled in joint names.  The car is encumbered with a debt with Capital One in both parties’ names. Wife shall be solely responsible for paying for this debt until it is paid in full. Upon payment in full and receipt of the title, which shall occur prior to December 2021, Wife shall timely transfer the title into Husband’s individual name. Wife hereby waives any and all right, title and interest she may have in this vehicle. Husband shall hereafter be solely responsible for all expenses relating to the operation, maintenance, insuring, and ownership of the vehicle and shall indemnify, defend, and hold Wife harmless from and against all obligations, claims, and expenses, including reasonable attorney’s fees, arising out of or relating to any of these obligations.  

Vehicle Insurance

The parties have a joint insurance policy through Cincinnati Insurance Company which has been paid through approximately November 2021. After the expiration of the current policy, Husband will obtain a policy in his individual name.

Frye Law Offices Business Card

Until the month following their minor child’s graduation from high school, Husband shall have a credit card from Frye Law Offices to use for his gas needs. Husband agrees to only use the card for the gas for his vehicle in a manner consistent with his historical use. Should Frye Law obtain a different credit card or get a replacement card, Wife shall provide Husband a replacement as soon as possible. Should Husband lose the card, he shall immediately notify Wife.

BANKING ACCOUNTS

At the time of the parties’ separation, the parties had the following banking accounts at State Employees Credit Union: share account, “budget” account, “warehouse” account, individual account in Husband’s name, and two savings accounts.  The parties have divided these accounts to their mutual satisfaction. All of the accounts, except Husband’s individual account, are jointly titled or titled solely in Wife’s name. Wife shall be responsible for removing Husband’s names from her accounts as soon as possible. Husband shall be entitled to his individual account.

Except as expressly set out above, Wife shall have as her sole and separate property any and all banking accounts she has in her separate name as of the date of the execution of this Agreement, and Husband hereby waives all right, title and interest in and to the same.  Except as expressly set out above, Husband shall have as his sole and separate property any and all banking accounts he has in his separate name as of the date of the execution of this Agreement, and Wife hereby waives all right, title, and interest in and to the same.    

STOCK/INTEGRITY INTEREST

The parties acknowledge that Husband has earned certain rights to stock or interest in Integrity (current employer) as of the parties’ date of separation. This property is solely Husband’s property free and clear of any claim/right of Wife. 

RETIREMENT BENEFITS AND INVESTMENT ACCOUNTS

The parties have the following retirement accounts and investment accounts: Wife’s combined Vanguard retirement accounts in her name, which totaled approximately $683,108.22 as of the date of separation; and Husband’s two retirement accounts (Vanguard and Integrity),  total $169,129.53 and $25,142.22 respectively as of the date of separation. To equalize the division of the retirement assets, Husband is due a flat amount of $244,418.24.

To effectuate this transfer of funds to Husband, the parties agree that they will work together for the IRA transfer to occur for $244,418.24 to Husband out of one of her Vanguard accounts. If this transfer cannot be effectuated by completion of Vanguard documents, Wife will be responsible for the entry of an IRA transfer order after the entry of the divorce. Wife shall be responsible for all legal paperwork needed to effectuate the transfer of these funds to Husband. The parties also recognize that Wife may need to file a limited action for equitable distribution so that the IRA Order can be entered. Wife will advance any fees to facilitate the filing of the lawsuit and entry of this Order, and the parties agree, if possible, the action will be filed in Durham County. If the plan charges any costs in relation to the review or entry of the IRA Order, the parties agree that this fee will be divided equally between them with the fee being deducted equally from the retirement funds. The parties acknowledge that the transfer cannot occur until a divorce judgment has been entered, which may not occur until July 2022 or later.

With respect to the retirement benefits and investment accounts referenced above, Wife’s retirement account(s) in Wife’s name shall be and become Wife’s sole and separate property except as to the specific amount due Husband above. The retirement account(s) in Husband’s name referenced above shall be and become Husband’s sole and separate property, and Wife hereby waives any and all right, title and interest in said account(s). 

After the entry of the QDRO above, each party shall be free to designate the beneficiary of his/her choice for retirement and investment accounts as set forth in this Agreement related to selecting their daughter as the sole beneficiary, and each party shall cooperate as necessary to sign any documents to effectuate the intent of this provision.  

BUSINESS INTERESTS

During the marriage, the parties acquired to businesses, Frith LLC and Frye Law Offices, PC. The parties agree that both business interests (including all assets, debts, accounts, etc.) shall be Wife’s sole and separate property, and Husband specifically waives any interest in these businesses. 

The parties acknowledge that Husband’s name is associated with Frith LLC, and the loan on the business condo located at 9209 Baileywick Road, Suite 203, Raleigh, N.C. Wife shall refinance the debt into her own name, and along with the refinance Husband will sign any documents needed to remove himself from the ownership of Frith LLC or any aspect of the business condo. Should it be that Wife cannot take over ownership of Frith, but instead she must establish a new entity, Husband will cooperate in signing any documents to close Frith and transfer the condo or other assets/debts to the new entity.

As to Frye Law Offices, the parties do not believe that Husband’s name is associated with any liability or asset of this business; however, if his name is associated with either a debt or a liability, he will cooperate with Wife so that she timely either removes him from the debt or so that his name is removed from the asset.

Wife indemnifies and holds Husband harmless as to all liabilities associated with both businesses.

DISTRIBUTIVE AWARD

The parties acknowledge that based on the property division above, Husband is due a cash award of $128,508.35 to equalize the division of non-retirement assets. The parties specifically acknowledge that  a minimum of $80,000 of these funds are being paid out of the cash refinance of the Former Marital Residence. After a settling of the equity in the Former Marital Residence as noted above, Wife shall owe Husband $48,508.35 as a distributive award. Wife shall pay this remaining balance no later than December 31, 2021.

DEBTS OF THE PARTIES

The parties warrant and acknowledge that as of the execution of this Agreement there are no joint debts except as noted above.  Wife had the following credit card as of the date of separation in her individual name: Capital One; Husband had no credit cards in his name. Wife shall be solely responsible for the credit card balance. 

FUTURE DEBTS

Neither party hereafter shall charge or cause to be charged to or against the other party any purchase which either party may make and neither party shall create any engagements or obligations in the name of or against the other nor shall either party secure or attempt to secure any credit upon or in connection with the other or in his or her name.  Each party shall promptly pay all debts and discharge all financial obligations to the best of his or her respective ability, which either may incur for himself or herself hereafter, and each shall hold the other free and harmless and shall indemnify and defend the other from any and all subsequent debts, obligations or liabilities which are incurred or sustained individually hereafter.

ARTICLE III

ALIMONY

Both parties waive any right to postseparation support, alimony, or attorney fees related to those claims from the other party.

WAIVER OF LIABILITY FOR NECESSARIES

Each party hereto 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 or have incurred since the date of the parties’ separation, including but not limited to, medical expenses.  Each party hereby warrants that at any time services are rendered for necessaries, he or she shall provide actual notice to any third party who provides necessaries to him or her that he or she was legally separated from the other party as of their date of separation, and that the provider should have no expectation of compensation or reimbursement from the other party 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 his or her under the doctrine of necessaries under the present and future laws of any jurisdiction. 

HEALTH INSURANCE FOR WIFE

The parties acknowledge that Husband currently covers Wife on his health and dental insurance policies through his employment, and he will continue such coverage until the parties’ date of divorce. Husband agrees to make sure that Wife has current medical and dental insurance cards at all times, and he agrees to allow her to maintain his access to the Cigna Health App to review claims for her and their daughter.

ARTICLE IV

TAX MATTERS

FILING OF TAX RETURNS

The parties may file joint tax returns for 2021 so long as they are legally entitled to do, so and they agree to provide any needed documents for the tax calculation no later than March 1, 2022. Both parties agree to take no steps to create a larger tax liability for the remainder of 2021, which includes liquidation of any retirement funds. Should Husband purchase a home prior to December 31, 2021, the parties will not be required to file jointly federal and state taxes so that Husband can have the full benefit of the purchase on his taxes. In this situation, the parties agree that Wife will be entitled to credit for all estimated taxes paid toward 2021 on her taxes. The parties agree to use Trish Mueller at Murray Moyer to prepare their joint 2021 Federal and State taxes. Wife shall be solely responsible for the payment of all estimated tax payments for the 2021 tax year based on the projections provided by their CPA, Trish Mueller. The parties will equally divide the cost of the preparation of the taxes, and they will equally divide any tax refunds.  Should there be a tax liability for 2021, the parties agree that the liability will be Wife’s sole and separate liability. Beginning with tax year 2022 and all subsequent tax years, the parties shall file their federal and state income tax returns separately from each other.  

MORTGAGE INTEREST DEDUCTION/PROPERTY TAX DEDUCTION

Once the parties file separate income tax returns, Wife shall be entitled to take the mortgage interest deduction, the property tax deduction, and any other credits, deductions, or exemptions related to the Former Marital Residence.

CLAIMING THE MINOR CHILD AS DEPENDENT

Once the parties file separate tax returns, Wife will claim their minor child on her tax returns as a dependent as long as the minor child is eligible to be claimed.

PREVIOUSLY FILED JOINT RETURNS

Husband and Wife agree to promptly notify the other in the event the Internal Revenue Service or any state or local taxing authority provides notice of an audit, deficiency, refund, or the adjustment regarding a tax return that was jointly filed. Husband and Wife further agree to cooperate fully with the other in any claim for refunds or in defending against any deficiencies (to include interest and penalties) that may be determined with respect to any previously filed joint income tax returns. Any deficiency (to include interest and penalties) shall be equally split unless the deficiency was caused by the failure or neglect of either party, in which event, the party responsible for the deficiency occurring shall be solely responsible for the timely payment of any deficiency (to include interest and penalties).

ARTICLE V

CHILD SUPPORT

The parties agree that neither will owe a child support obligation to the other. Both parents shall be responsible for the minor child’s needs during his or her custodial time.

Father shall maintain a health, dental, and vision insurance plan covering the minor child for as long as such coverage is available through any employer he may have. Mother shall be solely responsible for all uncovered medical expenses that total less than $500 per instance. Any uncovered medical or dental expenses that exceed $500 shall be divided 75/25 with Mother paying 75% and Father paying 25%. Specifically this division will apply to any orthodontia needs of the minor child, and the Father agrees to make the selection each year that would allow them the highest coverage amount by insurance for the minor child’s orthodontia. Father will always make sure that Mother has a current health insurance card  or dental card information, and if requested, he will allow Mother the authority to access or negotiate medical claims for the minor child with any insurance provider.

The minor child is currently involved in horseback riding at McNair Country Acres at a level of one lesson per week. Mother will be solely responsible for this cost. As to any further extracurricular activities, the parties must agree in advance on the activity. Any further activities that are agreed upon shall be paid as follows: Wife shall pay up to $400 per month toward any activity (less what is paid for horseback), and any remainder will be divided 75/25 with Father paying 25%.

Both parties agree to leave his or her retirement accounts (up to the current balances noted in this agreement) in trust for the minor child until she reaches the age of thirty (30). Both parties shall modify his or her respective beneficiaries within 30 days and provide proof to the other parent. Upon request, a parent shall provide proof of the beneficiary designation to the other parent. Both parents will have the discretion to select a trustee to manage the funds for their minor child until she reaches the age of twenty-five (25). 

Mother shall provide a cell phone, apple watch, laptop computer, tablet/Ipad to their minor child, and she will be solely responsible for the costs associated with these devices and her uses of these devices. Both parents will make best efforts to safeguard these devices.

When their child turns 16 year of age and has a valid driver’s license, Wife will purchase a safe vehicle for the child to use at both homes. The parents have the ability to select another later time should they both agree to do so. The vehicle can be leased or purchased, and Mother shall be solely responsible for the car insurance on the vehicle. 

The parties agree that the minor child has a savings account at State Employees Credit Union where Mother is the custodian. This account shall be for their daughter’s use and benefit. 

The parties agree that the minor child has a 529 account where Mother is the custodian. Mother will continue to contribute $425 per month in to this account until the minor child graduates from high school.  The parties anticipate that this 529 account should be sufficient to cover the cost of a state university for four years for their daughter.  At all times, the parents shall tell the minor child that “they” are paying for her college.

As to any reimbursements that are due in this provision, the parties agree to reimburse the other through Venmo within 30 days of the notice of the cost.

GENERAL PROVISIONS

CAPACITY

Each party is over eighteen (18) years of age and under no disability at the time of signing of this Agreement.   

MUTUAL RELEASE

Wife, for herself, her heirs, executors, administrators, and assigns, hereby releases and relinquishes unto Husband, his heirs, executors, administrators, and assigns, all rights of future support except as otherwise set out herein between these two parties, all right of dower, inheritance, descent and distribution, the right to dissent to his will, the right to receive an elective share under G.S. Section 30-3.1 et. seq., and any and all other rights arising out of the marriage relationship under present or future laws, and to any and all property or 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 provisions of N.C. Gen. Stat. § 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 his estate.    

Husband, for himself, his heirs, executors, administrators and assigns, hereby releases and relinquishes unto Wife, her heirs, executors, administrators and assigns, all rights of future support, all right of curtesy, inheritance, descent and distribution, the right to dissent to her will, the right to receive an elective share under G.S. Section 30-3.1 et. seq., and any and all other rights arising out of the marriage relationship under present or future laws, 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 her said property without his knowledge, further consent, or joinder, in accordance with the provisions of N.C. Gen. Stat. § 39-13.4, just the same as if he had never been married to her, and further does hereby release, relinquish, and renounce any and all right to administer her estate.

Subject to the rights and privileges provided for in this Agreement and in any deed or other instrument executed 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 by reason of any matter, cause or thing up to the date of the execution of this Agreement, except the cause of action for absolute divorce based upon the separation of the parties any action to enforce this Agreement. This provision shall not apply to any Social Security benefits that either party may have by reason of the marriage.

FUTURE CONVEYANCE

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 for the other party to execute any deed, conveyance, bill of sale or other legal instrument in order to guarantee or pass good title thereto, then, in such event, the other party 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.  It is further 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 party shall reasonably require for the purpose of giving full effect to these agreements and to this covenant, so long as no obligation is thereby imposed upon the party whose signature is sought by the other. 

Any property, real or personal, acquired by either party during the period of their separation and prior to their divorce shall not be considered marital property for any purposes arising under the North Carolina laws of equitable distribution.  Any party may carry on or engage in any employment, business, trade or profession as each may desire, choose or deem fit and 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.  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

DISCLOSURE

Each party covenants and represents to the other that a full and fair disclosure of all marital property owned or believed to be owned by the parties on the date of separation has been made to the other party and that this agreement is predicated upon this full and fair disclosure.  In the event that undisclosed marital property existing on the date of separation is determined, with a value of $1,000.00 or greater, then the non-disclosing party shall transfer seventy-five percent (75%) of said property to the party who did not know about the asset.

ENTIRE UNDERSTANDING

The parties agree that this instrument contains their entire agreement and is complete on the matters it covers.  Any representations, warranties, covenants, or undertakings, whether oral or written, other than those expressly set out herein are of no effect and void.

MODIFICATION OR 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 that or any subsequent default of the same or similar nature. 

SEVERABILITY

In the event any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.

EFFECT OF RECONCILIATION

In the event Husband and Wife end their separation by reconciliation and resumption of the 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 performance, 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.

SPECIFIC PERFORMANCE

Either party shall have the right to compel the performance of the provisions of this Agreement by suing for specific performance. Both parties acknowledge and stipulate 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 and may be applied as a remedy by the court for a breach by either party.    

BREACH

If Husband or Wife substantially breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her.

COUNSEL FEES UPON BREACH

In the event either party breaches any of the terms of this Agreement, the breaching party shall be required to pay reasonable attorney’s fees and other expenses resulting from the breach for the party whose rights were violated as a result of said breach.  The amount determined to be reasonable and so awarded shall be in the sole discretion of the presiding judge, and the award shall be made without regard to the financial ability of either party to pay, but rather shall be based upon the fees and expenses determined by the court to be reasonable and incurred by party whose rights were violated. 

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 as may be reasonably required to give full force and effect to the provisions of this Agreement.

STATUTE OF LIMITATIONS

This Agreement is executed under seal, and either party may institute an action against the other party to recover damages or specific performance for breach of any provision hereof at any time within the ten-year period next following the date of the breach of the contract.

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. All rights and remedies hereunder for either party shall be cumulative; the exercise of any one shall not be an election excluding the exercise of a different or inconsistent remedy at a different time or at the same time by an aggrieved party.  No waiver of any promise, conduct, privilege or condition herein shall imply or constitute a further waiver of same at a later time.  Acceptance of part performance, even with knowledge of the other party’s default, shall not constitute waiver of such default.

INTERPRETATION

No provisions of this Agreement shall be interpreted for or against any party because that party or that 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.

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

SUBMISSION TO JURISDICTION

Husband and Wife hereby submit themselves to the jurisdiction of the courts of the State of North Carolina which shall be the place of any future action brought by either of the parties regarding the provisions of this Agreement.

SITUS

This Agreement, and the rights and duties of the parties hereunder, shall be construed in accordance with, and governed by, the laws of the state of North Carolina.

INCORPORATION OF AGREEMENT

This Agreement shall not, under any circumstances, be incorporated into any subsequent decree, judgment, or order of any court, unless the parties specifically agree otherwise in writing.

MEMORANDUM OF AGREEMENT

In order to protect the privacy of each party, they agree to execute a Memorandum of Separation Agreement which shall be recorded in lieu of the full text of this Agreement in the event such recording is needed by either party.  The party requesting a Memorandum of Separation Agreement shall be responsible for the cost of preparing and recording the same.

VOLUNTARY ACT

Each of the parties acknowledges that he or she has read this Agreement and understands 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 this Agreement freely and voluntarily and without fear, compulsion, duress, coercion, persuasion or undue influence exercised by either party upon the other or by any other person or persons upon either party.

BINDING EFFECT

Except as otherwise stated herein, all of the provisions of this Agreement shall be binding upon the parties, their respective heirs, next of kin, executors, administrators and the like.

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.

DIVORCE FILING

The parties understand that they cannot contract to file for divorce; however, the parties agree that when either one of them chooses to file for divorce they shall do so in a county that is not Wake County to protect the parties’ privacy. 

RIGHT TO REPRESENTATION BY COUNSEL

Both parties have had the opportunity to consult with or be represented by legal counsel of his or her choice with respect to the terms of this Agreement.  Both parties acknowledge that they have either been or have had the right to seek full advisement of their rights and obligations arising from their marital relationship and have asked questions or acknowledge the right to ask counsel and have received answers to said questions which are fully satisfactory to them. Each party understands that the agreements and obligations assumed by the other are assumed with the express understanding and agreement that they are in full satisfaction of all rights which each of them now has or might hereafter or otherwise have in the property or estate of the other and in full satisfaction of all obligations which each of them now has or might hereafter or otherwise have toward the other.  The parties acknowledge that both the legal and practical effects of this Agreement are fully understood by them. Further Husband specifically acknowledges that although terms were discussed with Wife (who is an attorney) she did not provide him any legal advice and specifically advised him to consult with an attorney.