"

"
SENT~PONONEWA~R:YAfDC BK10258 PG1329
Flied In The District Court
DISP ffriTleS:
DlSP CODE-
A'\...-l-
!fLS_'~"'-'--_
0' Travis County, Texas

REDAC Q:.t!!Z...... = ~auseNo.IJ.1-FM-I0.003126 lM SE~?;~2010

JUDGE CLERK NM At e:.' ? M.
Amalia Rodriguez-ndoD, Clerk
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§ OF TRAVIS COUNTY, TEXAS
DONALD KIRK §
AND §
NANCY KIRK § S3 RD JUDICIAL DISTRICT

AGREED FINAL DECREE OF DIVORCE

On this date, the Court heard this case.

Appearances

Petitioner, Donald Kirk, appeared in person and announced that the parties have reached
an agreement. Respondent, Nancy Kirk, has made a general appearance and did not personally
appear. Donald Kirk and Nancy Kirk have agreed to the temlS of this judgment to the extent
permitted by law, as evidenced by their signatures and ,the signatures of their attorneys, appearing
below.

Waivers

....The making of a record of testimony was waived by the parties with the consent of the
Court. A jury was waived, and questions of fact and of law were submitted to the Court.

Jurisdiction and Domicile

The Court finds that the pleadings of the Petitioner are in due form and contain all the
allegations. information, and prerequisites required by law. The Court, after receiving evidence,
finds that it has jurisdiction over this case and over all the parties and that at least sixty days have
elapsed since the date the suit was filed. The Court finds that, at the time this suit was filed,
Petitioner had been a domiciliary of Texas for the preceding six months and a resident of Travis
County, Texas, for the preceding ninety days. All persons entitled to citation were properly cited
or have voluntarily appeared.

Agreement ofthe Parties

The Court finds that the parties have entered into a written agreement as contained in this
decree by virtue of having approved this decree as to both fonn and substance. To the extent
permitted by law, the parties stipulate the agreement is enforceable as a contract. The Court
approves the agreement of the parties as contained in this Final Decree of Divorce.

IMMOKil'1c 1'.,1110/21 Agl'lIl1d Firml Decne ojDivurce

11111111111\ 11111111111\1" 111111111111111111\111111111

001685320
 DC BK10258 PG1330

Divorce

It is ORDERED that Nancy Kirk and Dona1d Kirk are divorced and that the marriage
between them is dissol ved.

Children ofthe Marriage

The Court finds that there is no child of the marriage of the parties who is now under the
age of 18 years, and that none is expected.

Division of Marital Estate

The Court finds that the following is a just and right division of the parties' marital estate,
having due regard for the rights of each party.

It is ORDERED that Donald Kirk is awarded the following as his sole and separate
property either as a division of the parties' community estate or confirmed as his separate
property, and Nancy Kirk is divested of all right, title, interest, and claim in and to that property:

H-l. All household furniture, furnishings, fIxtures, goods. art objects, collectibles. appliances,
and equipment in the possession of Donald Kirk or subject to his sole control.

H-2. All clothing, jewelry. and other personal effects in the possession of Donald Kirk or
subject to his sole control.

H-3. All funds on deposit, together with accrued but unpaid interest, in the following banks,
savings institutions, brokerage accounts, or other financial institution under the name of
Donald Kirk:

Prosperity Bank, checking account no. 2875942

Prosperity Bank, savings account no. 81002149
A+ Federal Credit Union, savings acct. no. 1010000179193
Wells Fargo, checking account no.51 I 1539937
Wells Fargo, savings account no. 3724821370
Wells Fargo, savings account no. 5483441019
Wells Fargo, checking account no. XXXX991B
Wells Fargo, checking account no. XXXXS936

The parties are ORDERED to take alJ steps necessary to assure that the accounts awarded
to a party are held in that party's name.

H-4. All policies of life insurance (including ca~h values) insuring Donald Kirk's life. Both
parties wiIJ take al] steps necessary to dissolve the ILff that relates to life insurance on
DonaJd Kirk's life.

IMMOK;rk Pagdo/21 Agreu Final Dec,.ee 0/ Divoree

 DC BK10268 PG1331

H~5. The following motor vehicles titled in the name of Donald Kirk:

2005 Chevy Silverado

2007 Chevy Tahoe

2002 Toyota Celka

together with all prepaid insurance, keys, and title documents.

H~6. An undivided 50 percent interest in the real property and improvements located at 4
Windwood Court, The Hills, Travis County, Texas, more specifically described as:

LOT 457, HIlLS OF LAKEWAY PHASE FOUR, A SUBDNISION IN

TRAVIS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT
OF RECORD IN VOLUME 81, PAGES 123, OF THE PLAT RECORDS
OF TRAVIS COUNTY, TEXAS

including but not limited to any escrow funds, prepaid insurance, utility deposits. keys,
house plans, home security access and code, garage door opener. warranties and service
contracts, and title and closing documents, subject to the Special Provisions for Sale of
Windwood Court Property, contained herein.

H-7. The real property and improvements located at 321 La Lomita Circle. South Fork, Rio
Grande County, Colorado, including but not limited to any escrow funds, prepaid
insurance, utility deposits, keys, house plans, home security access and code, garage door
opener, warranties and service contracts, and title and closing documents.

Nancy Kirk is ORDERED to sign all documents necessary to transfer ownership of such
property to Donald Kirk within five business days of presentation of documents.

H-8. All sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise,
together with all increases thereof, the proceeds therefrom, and any other rights related to
the following retirement accounts held in the name of Donald Kirk:

Lake Travis Independent School District 403(b) account

WeJls Fargo IRA acct. no. 2022357160

H-9. With the exception of the amounts awarded to Nancy Kirk herein (ali set forth more
particularly in the Qualified Domestic Relations Order signed by the Court herein), all
sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together
with all increases thereof, the proceeds therefrom, and any other rights related to the
Texas Teacher Retirement System pension plan.

IMMOKiril P4Ke .10/21 "gN/lld FiNd Dec,," ofDivorce

 DC BK10258 PG1332

Donald Kirk is ORDERED to name Nancy Kirk as irrevocable beneficiary of the tOO
percent survivor benefit associated with such retirement plan as more specifically
identified herein, and to provide Nancy Kirk proof of such ejection within 30 days of the
date this Agreed Final Decree of Divorce is signed by the Court. Donald Kirk is further
ORDERED to take all future action that is required to designate or redesignate Nancy
Kirk as survivor beneficiary to receive 100 percent of the community property portion of
Donald Kirk's retirement pay after the date of his death, pursuant to the Special
Provisions Relating to TRS Survivor Benefit, contained herein.

H-IO. A sum equal to 100 percent of the balance of the Tomball Regional Hospital Retirement
Plan account held in the name of Nancy Kirk, as set forth more particularly in the
Qualified Domestic Relations Order signed by the Court herein, subject to his obligation
to pay Nancy Kirk the sum of $15,000 from such funds.

It is ORDERED that Nancy Kirk. is awarded the following as her sole and separate
property either as a division of the parties' community estate or confirmed as her separate
property, and Donald Kirk is divested of all right, title, interest, and claim in and to that property:

W -1. All household furniture, furnishings, fixtures, goods, urt objects, collectibles, appliances,
and equipment in the possession of Nancy Kirk or subject to her sole control.

W -2. All clothing, jeweJry, and other personal effects in the possession of Nancy Kirk or
subject to her sole control.

W-3. All sums of cash in the possession of Nancy Kirk Of subject to Nancy Kirk's sole control,
and all funds on deposit, together with accrued but unpaid interest, in the following
banks, savings institutions, brokerage accounts, or other financial institutions in the name
of Nancy Kirk:

Wells Fargo, savings account no. XXXX8739

Wells Fargo, checking, account no. XXXX9520

W -4. All sums, whether matured or unmatured. accrued or unaccrued. vested or otherwise.
together with all increases thereof, the proceeds therefrom, and any other rights related to
the HCA 401(k) account held in the name of Nancy Kirk.

W-5. A portion of Donald Kirk's retirement benefits in the Teacher Retirement System of
Texas arising out of Donald Kirk's employment with Texas public schools as of the date
that the Final Decree of Divorce is signed by the Court, that portion being 50 percent of
the amount earned or accrued during the parties' marriage, with survivor benefits as
stated herein. together with any interest, dividends. gains, or losses on that amount arising

lMMOKirlc Page4of21 Agreed Pi",,' Decree ofDipnrce

 DC BK10258 PG1333

since that date and more particularly defined in a Qualified Domestic Relations Order
authorized to be signed by the Court on the day this Final Decree of Divorce is signed.
and the Special Provisions Relating to TRS Survivor Benefit. contained herein.
W-6. The 2003 GMC Yukon motor vehicle, VlN IGKEC16Z13JtOl432, together with aU
prepaid insurance, keys, and title documents.

W-7. An undivided 50 percent interest in the real property and improvements located at 4
Windwood Court, The Hills, Travis County. Texas. more specifically described as:

LOT 457. HILLS OF LAKEWAY PHASE FOUR, A SUBDIVISION IN

TRAVIS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT
OF RECORD IN VOLUME 81, PAGES 123, OF THE PLAT RECORDS
OF TRA VIS COUNTY, TEXAS

including but not limited to any escrow funds, prepaid insurance, utility deposits, keys,
house plans, home security access and code, garage door opener, warranties and service
contracts, and title and closing documents, subject to the Special Provisions for Sale of
Windwood Court Property, contained herein.

W-S. All policies of life insurance (including cash values) insuring Nancy Kirk's life.

W-9. The sum of $15,000 payable from Donald Kirk to Nancy Kirk upon his withdrawal of
funds from the Tomball Regional Hospital retirement plan. Donald Kirk is ORDERED
to withdraw sufficient funds to pay Nancy Kirk $15,000 as soon as he is notified that the
funds have been moved into an IRA in his name. Donald Kirk is further ORDERED to
pay any and all taxes and applicable penalties that may accompany his withdrawal of
funds from the retirement account awarded to him pursuant to this section.

It is ORDERED that Donald Kirk, shall pay, as a part of the division of the estate of the
parties, and shaH indemnify and hold Nancy Kirk and her property harmless from any failure to
so discharge, these items:

H-l. Any and all debts, charges, liabilities. and other obligations incurred solely by Donald
Kirk, unless specifically stated otherwise herein.

H-2. All amounts due on the following debts:

a. Wells Fargo Visa, account no. XXXX8477

b. All debt owed to Prosperity Bank by Donald Kirk individually or jointly
with Nancy Kirk
c. Any and all amounts owed to Mary and George Kirk
d. American Express, account no. XXXX2000

lMMOKirk Pap 5 of21 Agnlflil Final Decree of Divorce

 DC BK10258 PG1334

H-3. Any and all attorneys' and professionals' fees and expenses incurred by Donald Kirk and
not previously paid.

H·4. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to
become due on the real andlor personal property awarded to Donald Kirk or confirmed as
his separate property in this decree unless express provision is made in this decree to the
contrary, including aU debt, assessments, taxes and other amounts due on the real estate
and improvements located in South Fork, Colorado and awarded to Donald Kirk herein.

H-5. The monthly amount due on the mortgage principal and interest, taxes and insurance
associated with the real property and improvements located at 4 Windwood Court, The
Hills, Travis County, Texas, until such time as the property is sold.

H-6. The sum of $15,000 payable from Donald Kirk to Nancy Kirk upon his withdrawal of
funds from the Tomball Regional Hospital retirement plan. Donald Kirk is ORDERED
to withdraw sufficient funds to pay Nancy Kirk $15,000 as soon as he is notified that the
funds have been moved into an IRA in his name. Donald Kirk is further ORDERED to
pay any and all taxes and applicable penalties that may accompany his withdrawal of
funds from the retirement account awarded to him pursuant to this section.

It is ORDERED that Nancy Kirk shall pay, as a part of the division of the estate of the
parties, and shall indemnify and hold Donald Kirk and his property harmless from any failure to
so discharge, these items;

W -1. Any and all debts, charges, liabilities, and other obligations incurred solely by Nancy
Kirk, except as specifically provided otherwise herein.

W -2. Any and all attorneys' and professionals' fees and expenses incurred by Nancy Kirk and
not previously paid.

W-3. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to
become due on the real andlor personal property awarded to Nancy Kirk or confirmed as
her separate property in this decree unless express provision is made in this decree to the
contrary.

It is ORDERED that each party shall send to the other party. within three days of its
receipt, a copy of any correspondence from a creditor or raxing authority concerning any
potential liability of the other party.

Special Provisions for JUT

The Court finds that the parties have created an Irrevocable Life Insurance Trust that is

IMMOKirli; Page60111 Agnled Final Decree 01Divorce

 DC BK10258 PG1335

intended to receive the proceeds of a life insurance policy insuring the life of Donald Kirk. The
Court finds that the parties have agreed to remove all assets from such trust, and each party is
ORDERED to take all steps necessary to move all assets out of such trust within 60 days of the
date this Agreed Final Decree of Divorce is signed by the Court. AU costs associated with the
tennination of the ILIT shall be paid by Donald Kirk.

Special Provisions for Sale of 4 Witulwood Court

The Court finds that the parties own, as community property, real property and
improvements located at 4 Windwood Court, The Hil1s, Travis County, Texas, and that the
parties have reached an agreement for the sale of the property and the division of the remaining
net proceeds. The Court approves the parties' agreement and ORDERS as follows:

1. Ownership and Lisuna of Property. The parties shall continue to own the property as
tenants-in-common and shall list the property for sale with an agreed-upon licensed
Realtor who is active in the Austin metropolitan real f:state market, at a listing price
agreed upon by the parties. The parties shall cooperate with each other and with the
listing Realtor to achieve a speedy sale of the property at a price and according to terms
that are acceptable to both parties. It is ORDERED that a party shall not unreasonably or
arbitrarily withhold his or her consent to adjust the listing price to facilitate a sale, nor
refuse to accept a bona fide offer to purchase the property, if such offer reasonably meets
or exceeds the parties' asking price and terms.

2. Repair and Make-Ready Expenses. Both parties shall be responsible for making the
arrangements for all agreed-upon repairs and make-ready projects, if any, as
recommended in writing by their chosen Realtor. It is ORDERED that the costs of all
agreed-upon repairs and make-ready expenses shall be paid by Donald Kirk from the
parties' savings account, if sufficient funds exist in that account, or from his other
accounts, if sufficient funds do not exist in the savings account, and it is further
ORDERED that Donald Kirk shalJ be reimbursed for the amounts expended on agreed­
upon repairs and make-ready expenses from the proceeds of the sale of the property
before such proceeds are divided between the parties. Donald Kirk is ORDERED to
provide receipts or other official documentation of the amount he has spent for agreed­
upon repairs and make-ready projects no fewer than seven days prior to the date the sale
of the property is scheduled to close.

3. Acceptance of OtTers. The parties shall accept any bona fide cash offer that is
acceptable to both parties; or, if the parties cannot agree, as detennined by the arbitrator
named herein. Each party shall infonn and advise the other as to the status of any offers
or negotiations concerning the sale of the property. No offer to purchase the property at a
price equal to or greater than the asking price then in effect shall be rejected except upon

IMMOKirlt '.ge 7 Dfll Agreed Final DecTfie ofDil'orce

 DC BK10258 PG1336

the written consent of both parties.

4. Occupancy of the Property and Payment of Expenses. The parties have agreed that
Nancy Kirk shall reside in the property, and shall have exclusive use and possession of
the property until it is sold, unless Nancy Kirk opts to vacate the premises before the
property is sold, as contemplated herein. While she resides in the home, Nancy Kirk is
ORDERED to keep and maintain the interior of the home in good condition, conducive to
showing to prospective buyers, and to cooperate with Realtors and potential buyers by
allowing access to the property at all reasonable times.

While Nancy Kirk resides in the marital residence and it is on the market listed for sale,
expenses of the household shall be allocated between the parties as follows:

Donald Kirk shall pay when due:

a. 100% of the monthly principal and interest payments on the property;

b. 100 percent of all homeowners' association dues or fees, when due;
c. 100% of all ad valorem taxes (whether paid monthly into escrow or in a lump sum
directly to the taxing authority); and,
d. 100% of all homeowner's insurance (whether paid monthly into escrow or in a
lump sum directly to the insurance company).

Donald Kirk shall further be responsible for performing maintenance on or paying for a
service to maintain the parties' grounds and swimming pool during the pendency of the
sale of the property.

Nancy Kirk shall pay all expenses associated with her use of the property, inc1uding but
not limited to: aU utilities, services (other than those listed above) and personal expenses.
Nancy Kirk is ORDERED to pay Donald Kirk the sum of $l,OOO per month as her share
of the expenses relating to the home beginning September I, 2010, and continuing on the
first day of each month thereafter in which she resides in the property while it is on the
market.

Should the contract for sale of the property effective as of September I, 2010 not close,
Nancy Kirk shall have the option to vacate the premises prior to the sale of the property.
In the event that Nancy Kirk vacates the premises, the parties have agreed and it is
ORDERED that Donald Kirk shall reside in the property, and shall have exclusive use
and possession of the property until it is sold.

In the event Nancy Kirk vacates the property and Donald Kirk has exclusive use and
possession of the property while it is on the market listed for sale, all expenses relating to
the property and Donald Kirk's use of the property shull be paid by Donald Kirk.

IMM(}/(irk Page8of21 Agrlled Pinal Decree ofDivorce

 DC BK10268 PG1337

Donald Kirk is ORDERED to keep and maintain the interior of the home in good
condition, conducive to showing to prospective buyers, and to cooperate with Realtors
and potential buyers by allowing access to the property at all reasonable times. Donald
Kirk shall further be responsible for perfonning maintenance on or paying for a service to
maintain the parties' grounds and swimming pool during the pendency of the sale of the
property.

5. Disposition of Casualty Insurance Proceeds. If, at anytime prior to closing of the sale
of the property, any building, tree or any other improvement on the property is destroyed
by fire or other casualty to the extent that it is imprudent to repair or replace the same, it
is ORDERED that any insurance proceeds payable as a result of said destruction shall be
divided as "net proceeds from the sale of the property" as defined herein. If, at any time
prior to closing of the sale of the property, any building, tree or any other improvement on
the property is destroyed partially by fire or other casualty, and it is prudent to repair or
replace the same, then any insurance proceeds collected by the parties for the repair
and/or replacement of said building, tree and/or other improvement shall be applied
against the cost of repair or replacement, subject to the superior rights of the lien holder.

6. No Mortgage, Pled._ or Encumbrance. Each party is prohibited from mortgaging,

pledging or otherwise encumbering or alienating his or her interest in the property for any
purpose without the prior written approval of the other party. If at anytime, either party
violates the aforesaid covenant. then the violating party shaU pay and be solely
responsible for, without contribution from the other party, and shall hold the other party
hannless from the full amount of any amount borrowed against the property.

7. Reasonable Costs of Sale. The parties agree that reac;onable and necessary expenses
incurred in connection with advertising, marketing and closing of the sale of the property
shall be paid from the sale proceeds of such property. Such expenses shall include
(without limitation) advertising; signage; brokerage and sales commissions; survey. title
curation and proof (including title insurance and/or abstract); recording fees; title
document preparation fees; title transfer costs~ proration of taxes, insurance; and other
normal closing costs associated with the closing of a sale of property of like kind and
nature in the locale where the property is located.

8. Basis and Capital Gain. The parties agree that Nancy Kirk shall have as her share of
the ba.'iis in the property SO percent of the basis in the property on the date sale is closed
and Nancy Kirk's share of any gain (or loss) realized on the property for tax reporting
purposes shall be 50 percent of the total gains (or loss) realized by the parties on the sale
of the property. The parties further agree that Donald Kirk shall have as his share of the
basis in the property 50 percent of the ba~is of the property on the date sale is closed and

IMMOKirlc PlI/ll!90f21 Agreed Final Decrllll of Divorce

 DC BK10258 PG1338

Donald Kirk's share of any gain (or loss) realized on the property for tax reporting
purposes shal] be 50 percent of the total gain (or loss) realized by the parties on the sale
of the property.

9. Disposition of Net Proceeds. For purposes of interpreting this Decree. "net proceeds"
shaU be defined as the sum remaining after payment of all outstanding liens, prorated
interest, property taxes, closing cost... , and those reasonable and necessary cost-of-sale
expenses described in paragraph 7, above.

Nancy Kirk and Donald Kirk have accepted the pending offer as of September 1, 2010. H
the property closes on the terms of the contract, it is ORDERED that Nancy Kirk shall
receive 100 percent of the net proceeds from the sale of the residence.

Any refunds arising from prepaid homeowners' insurance premiums related to the
property or overages in escrow accounts are awarded 50 percent to Nancy Kirk, and 50
percent to Donald Kirk. All refunded utility deposits are awarded 50 percent to Nancy
Kirk and 50 percent to Donald Kirk.

Each party is ORDERED to sign any and all documents necessary to have the proceeds
from the sale of the property distributed as the parties have agreed herein.

Should the contract as of September 1, 2010 not close, then from the net proceeds from
the sale of the property:

a. Each party shall be reimbursed for any agreed-upon repairs and make-ready
expenses for which he or she has presented re(:eipts or other official records of
payment;

b. Nancy Kirk shall receive 100 percent of the first $10,000 in net proceeds; and,

c. Nancy Kirk shall receive 50 percent and Donald Kirk shall receive 50 percent of
the remaining amount.

10. Resolution of Disputes. In the event a dispute arises between the parties regarding the
sale or listing of the property, and such dispute cannol be resolved by direct negotiation
between the parties, Nancy Kirk and Donald Kirk agree to submit the dispute to binding
arbitration with attorney Keith Maples, or an arbitrator to be selected by agreement of the
parties in the event Keith Maples is unable or unwilling to arbitrate the matter. In the
event the parties cannot agree upon the selection of an arbitrator, each party shall
designate an arbitrator and those two arbitrators shall select the arbitrator. The party
wishing to invoke this arbitration provision shall give notice to the other party of such

Page lOof2I Agreed FitullDecree ofDivorce

 -

DC BK10258 PG1339

intention and his or her choice of arbitrators. Any such dispute will be submitted to
binding arbitration within five (5) business days of the receiving party's receipt of such
notice. Each party shall be responsible for 50 percent of the arbitrator's fees.

11 . Income Tax Deductions. Each party shall each be entitled to claim 50 percent of any
federal income tax deductions for mortgage interest and property taxes related to the
property. In the event that giving one party or the other will save the parties more money
than splitting the deductions, the parties agree to assign all deductible expenses to the
party for whom the greatest tax savings is realized, and that party agrees to share the tax
savings with the other party. In the event the parties are unable to agree about this issue,
the issue shall be submitted to an agreed-upon CPA, who will make a determination
about which party shall claim the deductions and how much money should be paid to the
other party to equalize the tax benefits of the deductions relating to the house.

Special Provisions Relating 10 TRS Survivor Benefil

The Court finds that the parties have agreed, and it is ORDERED that Donald Kirk shall
elect the "Option I" benefit (as described on the correspondence from TRS attached as Exhibit
A, and incorporated for all purposes as if set our verbatim herein) for Nancy Kirk which names
her as irrevocable survivor beneficiary to receive 100 percent of the amount of retirement pay
attributable to the marriage that Donald Kirk receives during his lifetime at the time of his death.
The Court finds that the cost of such annuity is $317.18 per month. which will be deducted from
Donald Kirk's monthly retirement benefit during the period between the date he begins receiving
retirement pay from TRS and the date of his death.

The Court further finds that Nancy Kirk has agreed, and she is hereby ORDERED, as
trustee for Donald Kirk or his estate, to pay a portion of the retirement pay she receives after
Donald Kirk's death to his beneficiary(s) as designated in his Last Will and Testament or if he
has no will to his heirs at law (heirnafer, his "Beneficiaries). Such portion shall be detennined as
fol1ows:

l. As the trustee for Donald Kirk's Beneficiaries, Nancy Kirk shall reimburse herself an
amount equaJ to $158.59 for each month between the date Donald Kirk begins receiving
retirement pay and the date of his death before payments are due to Donald Kirk's
Beneficiaries.

2. After Nancy Kirk has been fully reimbursed for the premiums paid on the survivor
benefit during Donald Kirk's lifetime that are attributable to Donald Kirk's Beneficiaries,
Nancy Kirk shall. as Donald Kirk's trustee, pay to Donald Kirk's Beneficiaries a sum
equal to 50 percent of the total amount she receives as a survivor benefit after Donald
Kirk's death minus the sum of $158.59, which she shall retain as reimbursement for 50

IMMOKirk ".,111 oJ2/ Agreed Firtal Decree oj Divorce

 DC BK10268 PG1340

percent of the premium paid for the benefit.

By way of example, if Nancy Kirk receives $10,000 per month as payment under the
provisions of TRS's survivor benefit, she would pay to Donald Kirk's Beneficiaries the
sum of $5,000 less $158.59, for a total payment of $4,841.41.

Income Taxes

Liability for Federal Income Tam for Prior Years;. It is ORDERED that each party
shall be responsible for 50% of all federal income tax liabilities of the parties from the date of
marriage through December 31, 2009, and shall timely pay 50 percent of any deficiencies,
assessments, penalties, or interest due thereon and shall indemnify and hold the other party and
his or her property harmless from such liabilities. The parties agree that nothing contained herein
shall be construed as or is intended as a waiver of any rights that a party has under the "Innocent
Spouse" provisions of the Internal Revenue Code.

Tax Refund for Prior Years. It is ORDERED that if a refund is made for overpayment
of taxes for any year during the parties' marriage through Dec:ember 31 of 2009. each party shall
be entitled to one-half of the refund, and the party receiving the refund check is designated a
constructi ve trustee for the benefit of the other party. to the extent of one-half of the total amount
of the refund, and shall pay to the other party one-half of the 10tal amount of the refund check
within five days of receipt of the refund check. Each party is ORDERED to endorse a refund
check on presentation by the other party.

Taxes and Refunds for 2010. It is ORDERED that the parties shaH file their 2010
federal income tax returns in accordance with regulations of the Internal Revenue Service and
report income and deductions in the manner required by IRS. The parties may agree and elect an
IRS-accepted alternative method for filing and reporting income for 2010 that benefits them
both, if recommended by their tax return preparer. It is ORDERED that the parties will use the
same CPA to prepare their separate income tax returns.

It is ORDERED that, unless money is owed by one party to the other because of the tax
preparer's recommendation, Nancy Kirk and Donald Kirk shall each pay, and shall each hold the
other party and the other party's property harmless for all tax liability shown to be due and
payable on hislher separate 2010 federal income tax return prepared as described above. It is
ORDERED that, if money is owed by one party to the other based on the tax preparer's
recommended method of filing, the paying party shall deliver the fund~ to the receiving party
within three business days of the date the determination is made. It is ORDERED that each party
shall pay 100% of that party's tax return preparer's fee chargf:d for preparing that party's 2010
separate return.

In the event the parties' tax preparer determines that it is most beneficia] for the parties to

IMMOKirk Page I20/21 Agreed "'illal Decree of Di~o,ce

 -

DC BK10258 PG1341

partition their respective incomes for 2010, it is ORDERED Donald Kirk and Nancy Kirk shall
file separate income tax returns for 2010 using the "partition method" of filing. In connection
with their separate returns, it is ORDERED as follows:

Donald Kirk shall report on his 2010 federal income tax return:

1. all earned income including wages, salaries, management fees, fees for contract labor,
consulting fees, or professional fees, and other amounts received as compensation for
personal services actually rendered by Donald Kirk;

2. Donald Kirk's trade or business income, and a partner's distributive share of partnership
income where as between the parties he exercises substantially all the management and
control;

3. income which is derived from the property awarded or confirmed to Donald Kirk by this
Decree of Divorce; and,

4. any other income received by Donald Kirk and properly reportable by him under the
Internal Revenue Code.

It is further ORDERED that Donald Kirk shan claim and deduct:

1. all deductible expenditures paid by him;

2. deductible expenditures, depreciation, and losses attributable to property awarded or

confirmed to Donald Kirk in this Decree of Divorce;

3. a1l income withheld from his earned income;

4. all prepayments personally paid by him for the year 2010;

5. 50 percent of aU deductible expenses relating to the property located at 4 Windwood

Court, The Hills, Travis County, Texas;

6. non-payment credits attributable to his earnings or property awarded or confirmed to

Donald Kirk by this Agreed Final Decree of Divorce; and,

7. a)] loss carry-forwards attributable to property awarded to Donald Kirk.

It is ORDERED that Nancy Kirk shall report on her 2010 federal income tax return:

1. all earned income including wages, salaries, management fees, fees for contract labor,

IMMOKirk Pag6 130/21 Agnl,tl Fintlllkcnl6 o/o;,orc:e

 .-­
DC BK10268 PG1342

consulting fees, or professional fees, and other amounts recei ved as compensation for
personal services actually rendered by Nancy Kirk;

2. Nancy Kirk's trade or business income. and a partner's distributive share of partnership
income where as between the parties she exercises substantially all the management and
control;

3. income which is derived from the property awarded or confirmed to Nancy Kirk by this
Decree of Divorce; and,

4. any other income received by Nancy Kirk and properly reportable by her under the
Internal Revenue Code.

It is further ORDERED that Nancy Kirk shall claim and deduct:

1. all deductible expenditures paid by her;

2. deductible expenditures, depreciation, and losses attributable to property awarded or

confirmed to Nancy Kirk in this Decree of Divorce;

3. all income withheld from her earned income;

4. all prepayments personally paid by her for the year 20 to;

5. 50 percent of all deductible expenses relating to the property located at 4 Windwood

Court, The HiJIs, Travis County, Texas;

6. non-payment credits attributable to her earnings or property awarded or confirmed to

Nancy Kirk by this Decree of Divorce; and,

7. all loss carry-forwards attributable to property awarded to Nancy Kirk.

To the extent necessary to effect this division of tax liclbility for income received in 2010,
it is ORDERED that this Decree of Divorce shall serve as a partition of income. setting aside to
Donald Kirk as his separate property:

1. all earned income including wages, salaries, or professional fees, and other amounts
received as compensation for personal services actually rendered by Donald Kirk;

2. Donald Kirk's trade or business income, and a partner's distributive share of paltnership
income where as between the parties he exercises substantially aU the management and
control;

IMMOKirl< Page 14 0/11 Agned FiMI Dec,.ee ofDi11'Ort:e

 -

DC BK10258 PG1343

3. income which is derived from the property awarded or confirmed to Donald Kirk by this
Decree of Divorce;

4. any other income confirmed to Donald Kirk and properly reportable by him under the
Internal Revenue Code;

5. all deductible expenditures paid by him;

6. deductible expenditures, depreciation, and losses attributable to property awarded or

con finned to Donald Kirk by this Decree of Divorce;

7. all income tax withheld from his earned income;

8. an prepayments personally paid by him for the tax year 2010;

9. 50 percent of all deductible expenses relating to the property located at 4 Windwood

Court, The Hills, Travis County, Texas~

to. non-payment credits attributable to his earnings or property awarded or confirmed to

Donald Kirk by this Decree of Divorce; and,

II. all loss carry-forwards attributable to property awarded to Donald Kirk.

It is further ORDERED that this Decree of Divorce shall serve as a partition of income,
setting aside to Nancy Kirk as her separate property:

1. all earned income including wages, salaries, or professional fees, and other amounts
received as compensation for personal services actually rendered by Nancy Kirk;

2. Nancy Kirk's trade or business income, and a partner's distributive share of partnership
income where a'\ between the parties she exercises sUbstantially all the management and
control;

3. income which is derived from the property awarded or confirmed to Nancy Kirk by this
Decree of Divorce;

4. any other income confirmed to Nancy Kirk and properly reportable by her under the
Internal Revenue Code;

5. all deductible expenditures paid by her;

6. deductible expenditures, depreciation, and losses attributable to property awarded or

IMMOlUrk Pall#! 150/11 Agreed Final Decree 0/ DiWJrce

----------------------------------~-----~,~--------------------------
L

DC BK10258 PG1344

confirmed to Nancy Kirk by this Decree of Divorce;

7. all income tax withheld from her earned income;

8. all prepayments personally paid by her for the tax year 2010;

9. 50 percent of all deductible expenses relating to the property located at 4 Windwood

Court, The Hills, Travis County, Texas;

10. non-payment credits attributable to her earnings or property awarded or confirmed to

Nancy Kirk by this Decree of Divorce; and,

II. all loss carry-forwards attributable to property awarded to Nancy Kirk.

It is ORDERED that this partition is made under the provisions of TEX. CaNST. Art.
XVI, Section IS, a~ amended November 25, 1980, and November 3, 1987, which provides that:

Spouses ... may by written instrument from time to time partition between
themselves all or any part of their property then existing or to be acquired or
exchanged between themselves the community interest of one spouse ... in other
community property then existing or to be acquired, whereupon the portion or
interest set a~ide to each spouse ... shall be and constitute a part of the separate
property and estate of such spouse

and in accordance with TEX. FAMll..Y CODE, Subsections, 4.102, 4.103, 4.104, 4.105, and
4.106 (as amended, effective September 1, 1997) and §7.002.

It is the intent of the parties that aJl of their taxable income. expenses, gains, and losses be
partitioned in the manner described above. To the extent that a taxing authority may determine
that such income, expenses, gains. or losses are determined in any manner that is not consistent
with the partition set out in this Decree, the parties agree that the total taxes paid by the
respective parties will be proportionate to their tax liability determined in the manner described
in this Decree.

It is ORDERED that Donald Kirk shan pay, and shall hold Nancy Kirk and her property
harmless for, all tax liability shown to be due and payable on his 20 I0 federal income tax return
prepared pursuant to Section 66, Internal Revenue Code as hereinabove provided, plus any
penalty and interest referable thereto, and subject to those specific provisions in paragraph 2 of
the section titled "Taxes and Refunds for 2010," Nancy Kirk ~hall pay and shall hold Donald
Kirk and his property harmless for all tax liability shown to b{~ due and payable on her 2010
federal income tax return prepared pursuant to Section 66, Internal Revenue Code as hereinabove

IMMOKirk Pagll16D/21 ;l,ned Final Decree o/IJiFotre

 DC BK10258 PG1345

provided. plus any penalty and interest referable thereto. It is ORDERED that any tax refund
shown to be due and payable to Donald Kirk on his 20 I 0 federal income tax return, prepared
pursuant to Section 66, Internal Revenue Code as hereinabov(~ provided, shall be the separate
property of Donald Kirk, and any tax refund shown to be due and payable to Nancy Kirk on her
2010 federal income tax return, prepared pursuant to Section 66, Internal Revenue Code as
hereinabove provided, shaH be the separate property of Nancy Kirk.

Dependency Exemptions

It is ORDERED that Donald Kirk shaH have the right to claim the children as dependents
for purposes of federal income taxes for each year that any child qualifies as a dependent. In the
event that Donald Kirk cannot benefit from such exemptions. Donald Kirk shall offer the
exemption or exemptions to Nancy Kirk at no charge to her.

FuU Disclosure

The parties represent and warrant to each other and to this Court that the property
described herein represents all of the property in which they have any right, title, and interest, and
that such property is subject to no mortgage, pledge, lien, charge, security interest, encumbrance,
or restriction which is not known to the other party. It is, therefore, ORDERED that all
community property not listed in this Decree, which property is later determined to be in the
possession of or under the control of Donald Kirk or Nancy Kirk, shall be divided by the Court in
a division that is considered just and right, pursuant to the TEXAS FAMll...Y CODE. It is
ORDERED that the party in possession or control of such property is designated as the
constructive trustee of the property for the benefit of the other party.

It is ORDERED, as a part of the division of the estate of the parties, that any community
liability not expressly awarded to a party under the terms of this Decree is to be paid by the party
incurring the liability.

Execution 0/ Documents

It is ORDERED that the each party shall execute all instruments necessary to effectuate
this Decree, including any deeds, biHs of sale, assignments, consents to changes of beneficiary of
insurance policies, tax returns. partnership agreements, and other documents, and that the parties
shall each have all appropriate and necessary writs, execution, and process, as many and as often
as is necessary to accomplish the execution and final dispositi.on of this judgment. The parties
shall cooperate to insure that all transfers of community and separate property funds,
modifications of signatories to accounts, custody of safe deposit boxes and their contents, etc.
occur within thirty (30) days from the date this Decree is approved by the Court.

IMMOKirJ; PtIfle 17 of21 Agreed Final Decree of Di~ol't:e

 DC BK10268 PG1346

Decree as Muniment 0/ Title

Notwithstanding any other provisions of this Decree, this judgment shall operate as a
conveyance to the parties so named of the real property described herein and title to such real
property passes as ordered herein, without the necessity of any further action by the party being
divested of title.

All Claims Settled

It is ORDERED that each party hereby surrenders any claims for reimbursement his or
her separate property estate may have against the community estate of the parties, or the separate
property estate of the other, or the community estate may have against either party's separate
estate, and acknowledges that al1 claimed separate property has been set aside to him or her in
this Decree. Accordingly, all claims for reimbursement are hereby DENIED.

Notwithstanding this waiver, it is ORDERED that neither party is released from any
obligation created by this Decree.

Collaborative .l.aw

The parties' agreement, as reflected in this Agreed Final Decree of Divorce, was arrived
at through the process of Collaborati ve Law. At the commencement of the process, and
throughout it, the parties agreed that the process was to focus solely upon reaching a
comprehensive resolution of all their property rights and support rights, and this Agreed Final
Decree of Divorce reflects the comprehensive resolution of all such rights. In arriving at the
agreements set out in this Agreed Final Decree of Divorce, the parties have appJied their
individual standards of reasonableness and acceptability. The conclusions they have reached are
based in part on their respect and regard for each other. From time to time, in order to measure
the appropriateness of their conclusions, the parties have considered what might happen if the
matter were adjudicated in court but they have elected to make their final agreement without
regard to whether a court might have adjudicated issues in the same manner as they have agreed
here. Nancy Kirk and Donald Kirk represented to one another throughout the Collaborative Law
process that their negotiations were in good faith and that each had fully and completely
disclosed all information necessary or requested in order to resolve the parties' property and
support rights fairly. By their signatures on this Agreed Final Decree of Divorce, they reaffirm
those representations, which each of them has relied upon in making this agreement.

The parties acknowledge that no independent investig'ltion has been made by their
Collaborative attorneys of the character or value of the parties' property, or the extent of debt or
amount of income of the parties. The parties have instructed (~ounsel that they desire to enter into
this Agreed Final Decree of Divorce without any further independent investigation. The parties

/MMOKirk Page/Bol21 Agned Filf4l ~retl 01 Divorce

 DC BK10258 PG1347

understand and acknowledge that they are relying on their mutual disclosures in making this
agreement. and that they are not relying on their counsel for independent verifications of the
accuracy or completeness of those disclosures.

The terms of this Agreed Final Decree of Divorce have been explained fully to each party.
Each party has read carefully this Decree and is aware of its contents and legal effect. Each party
acknowledges that he and she have made an investigation of flssets and obligations of the parties
and the value and amount thereof as each party has deemed sufficient and necessary for his and
her own purposes in negotiating this Agreed Final Decree of Divorce.

Voluntarily Signed

Each party has read carefully this Decree and is aware of its contents and legal effect.
Each party acknowledges that he and she have made an investigation of assets and obligations of
the parties and the value and amount thereof as each party has deemed sufficient and necessary
for his and her own purposes in negotiating this Agreed Final Decree of Divorce.

The parties each acknowledge that before signing the Agreed Final Decree of Divorce,
they have read the document fully and completely, have had the opportunity to ask any questions
regarding the same, and fully understand that the contents of this Agreed Final Decree of Divorce
constitute a full and complete resolution of this case. The parties acknowledge that they have
voluntarily affixed their signatures to the Agreed Final Decree of Divorce, believing their
agreement to be a just and right division of the marital debt and assets, and state that they have
not signed by virtue of any coercion, any duress, or any agreement other than those specifically
set forth in this Agreed Final Decree of Divorce.

Clarification

Without affecting the finality of this Final Decree of Divorce, this Court expressly
reserves the right to make orders necessary to clarify and enforce this Decree.

It is ORDERED that all relief requested in this case and not expressly granted is
DENIED. This is a final judgment, for which let execution and all writ') and processes necessary
to enforce this judgment issue. This judgment finally disposes of all claims and all parties.

SIGNED~WQ ,2010.
-r

IMM() Kirlc Page 190/21 Agreed Final Dec,ee 0/ Divorce

 DC BK10258 PG1348

Clarification

Without affecting the finality of this Final Decree of Divorce, this Court expressly
reserves the right to make orders necessary to clarify and enfo['(:e this Decree.

It is ORDERED that al1 relief requested in this case and not expressly granted is
DENIED. This is a final judgment, for which let execution and all writs and processes necessary
to enforce this judgment issue. This judgment finally disposes of all claims and all parties.

SIGNED _ _ _ _ _--', 2010.

JUDGE PRESIDING

APPROVED AND CONSENTED TO

AS TO BOTH FORM AND SUBSTANCE:

Nancy Kirk

L:::>d" ~....L
Donald Kirk

THE STATE OF TEXAS §

COUNTY OF TRAVIS §

Signed and acknowledged before me, the undersigned Notary Public, on~ ~ ,2010,
by Donald
UNNEA D. IENNm
Notary Public. State of Texa.
My Commi.slon
June Notary Public, State of Texas

THE STATE OF TEXAS §

COUNTY OF TRAVIS §

Signed and acknowledged before me, the undersigned Notary Public, on _ _ _ _ _'. 2010,
by Nancy Kirk.

Notary Public, State of Texas

IMMOKbi
 DC BK10258 PG1349

Donald Kirk

THE STATE OF TEXAS §

COUNTY OF TRAVIS §

Signed and acknowledged before me, the undersigned Notaly Public, on _ _ _ _-'. 2010,
by Donald Kirk.

Notary Public. State of Texas

THE STATE OF TEXAS §

COUNTY OF TRAVIS §

Signed and acknowledged before me, the undersigned Notary Public. on~ 2010,

by Nancy ~rk. JIlL M. IAUEIlfIN ,_ J A '& 2~~

... • NoIelyN1llc, SttIaotTexn Yl/V\.l ~
. . My=~~~res .Public, State ofTexas

IMMOXI1'4 Pap 2(J 0./21

 DC BK10258 PG1350

AlPROVED AS TO FORM ONLY:

THE LAW OFFICES OF JENNIFER 11JLL

700 Lavaca Street, Suite 1150
Austin, Texas 78701
Telephone: (512) 472-1919
Facsimile: (512) 472-1806

~
fjt;:.:~
By: ~
J . erTull

Attorneys for Nancy Kirk

TRUSLER MENDUNI, PLLC

5300 Bee Cave Road
Building m, Suite 250
Austin, Texas 78746
Telephone:~
F~Unilo; ~t)478:19 ~
By:
Cristi Trusler

W
State Bar No. 24002804

Attorneys for Donald Kirk

IMMOKlrt
 -.
TEACHER RETIREMENT SYSTEM OF TEXAS TRS 25
1000 Red River Street. Autin. Texas 78701·2698 BeT. 02-09
Telephone (612) 642-6400 or 1-80G-J23.TR8T(8778)
WWW.trs.state.bt.ua 20100715: 15 :20:006-796 2R
SERVICE RETIREMENT 00378861
ESTIMATE OF BENEFITS
Name: DONALD R KIRK Retirement Date: JUL 31 2012
Social SeeuritJ No: Member Biribday: JUL 1959
Age of Member at Retirement: 53 00 Beneficiary: WIFII: Beneficilll'J' Age: 58
INS'l'RUCTJONS
The fOllowing cakulations are based on service and salary information eontained in your file at the Teacher Retirement S,stem
(TRS). Please notify TBS if any f!.pres ditTer from JOur personal record. and ex.plain the differenees. The laet annual salary is
usually estimated. Your anruuO' wiU be reealculated after the emplu;yer rep-,m your uad fina.l ,olGry. AlUlual salaries used iD
this estimate are eulUect to audit and adJustment by TRS.

CALCULATING YOUR ANNUITY

Highest annual salaries: 2005-06 2006-07 2007-08 2008-09 2009-10
$178,000 $211,635 $237,928 $250,320 $262,61.

Higheat averap salary: $228,699

27

Years of service credit:

Total service: 27 X 2.30
$228,699 X 0.6210 -
,=62.10'

$112,022.01 StandardAnnuityper:rear[grosa)

$112,022.04 +12= $11,835.17 Standard Annuity per month (gross)

SEE A7TACRID BKCBSS BBHBPIT PAYMENTS BSTIMArI

TBB RBTlRBMENT PAYMENT PLANS (S. nlWrw side (or additional in~rmotion)
One or these plans is to be selected on JOur .. Applicatirm for Service Retirement" furm (TRS 30). which must be filed witJa the
Teacher Retirement System no later than the Jut daJ of the II8COnd calendar month following your ~tTective date 01 retirement..

STANDARD ANNUITY -$11,835.17 per month (gro.s) payable th1T1U/lhoutyour life.

O?,!,ION I $11 , 181 • 87 per month (gross) payable tAro'U{liaout your life. Upon your death thia same amount will
• continue to be paid throuchout the liIe of the person you name .. beneficiary for this benefit. If the pemoD designated a8
beneficiary for this benefit dies before you, future annuity paymenta to JOU will increase to the standard. annuity amount.
Based on federal regulations. YO'll may not be elicible to select Option 1 if you derdgnate a non-spouse beneficiary who ia
younger than you.
OPTION 2 $11,499.05 per montb (gross) payable throU(/laoullOOf life. Upon your death one-halft1l2)~thls amount
will be paid throughout the life oCthe person you name .. beneficiary Cor this benefit. lithe perllO~Jg1lated as
beneficiary for thia benefit dies before you, future annuity payments to JOU wiD increase to the standard annuity amo'llnt.

OPTION 3 $11,812.68 pel' month (grou) payable throUgiaoutJOOf \.iCe. Should your death occur within a period of

60 months (6 years) (rom the date or 10ur retirement. this same amount win be paid to your beneficiary until the

remainder of the 60 payments has been made.

OPTION 4 $11 , 7' 6 • 41 per month (gross) payable tltroughout your life. Should your death oceur within a period of

120 months (10 years) (rom the date of JOur retirement. this same amount. will be paid to your beneficial'J until the

remainder of the 120 payments h.. been made.

OPTION 15 'IIi( 338 • 09 per month (lU'Ou) payable Ihrougiaout yoW' lire. Upon JOur death three-.f'ourtbs (814) of this
amounl. wi bo paid throughout the lire of the penon 1011 name .. beneficiary fbr this benefit. II the person designated
as beneficiary tor this benefit dies befOre you. ruture aniluity paymentli to you will increase to the $tandard annuity
amount. Based on federal regalatio.... yon may not be eligible to select Option 6 if you designate a non-spouse
beneficiary who is younger than you. Thia regulation applie& U\ reurllmentli after December 31, 2007.

SEE REVERSE FOR DBSCRlPTION OF ADDITlONAL BRNEPITS