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Prior to Pennsylvania legally recognizing same-sex marriages, other states did offer same-sex marriages or civil unions. A problem for couples who entered into an out-of-state marriage or civil union was that if they later decided to divorce, they could not do so in the Pennsylvania family courts. This was because Pennsylvania did not recognize those marriages or civil unions as legal. In June 2013, in United States v. Windsor, the United States Supreme Court ruled that the Defense of Marriage Act’s (DOMA) defining marriage as between one man and one woman was unconstitutional, but the Court limited the impact of their decision. In May 2014, the United States District Court for the Middle District of Pennsylvania ruled in Whitewood v. Wolf that Pennsylvania’s definition of marriage and refusal to recognize out-of-state same-sex marriages were unconstitutional. Then, in June 2015, the United Stated Supreme Court in Obergefell v. Hodges ruled that same-sex couples must have the right to marry. This decision applies to every state.
While these decisions expanded rights to same-sex couples, a lot of questions were left unanswered. One of the big questions was whether civil unions entered into in other states prior to the legalization of same-sex marriage would be recognized by Pennsylvania. If the civil unions were not recognized as legal marriages, then Pennsylvania courts did not have to grant divorces, divide the assets and liabilities through equitable distribution or address support issues There were potential child custody ramifications as well. This left Pennsylvania same-sex couples who legally entered into out-of-state civil unions without the ability to divorce or deal with the economics related to their marriage through the family courts in their home state.
On December 28, 2016, the Superior Court of Pennsylvania addressed this question in Neyman v. Buckley. The Superior Court of Pennsylvania ruled “that a Vermont civil union creates the functional equivalent of marriage for the purposes of dissolution.” In this case, the parties, Pennsylvania residents, entered into a Vermont civil union in 2002 and separated later that year. From 2014 through 2015 the parties unsuccessfully sought a divorce in Pennsylvania and appealed their case to the Pennsylvania Superior Court arguing that the Pennsylvania family court should have jurisdiction to dissolve their Vermont civil union and that the Vermont civil union should be treated as a legal marriage in Pennsylvania. It is important to note that Vermont intended same-sex couples that entered into civil unions to have the same rights and access to the family court system as those who were married. The Superior Court of Pennsylvania used this reasoning to “conclude that the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the Divorce Code.” This decision allows same-sex couples who entered into out-of-state civil unions the same rights as if the civil union were a marriage. It also allows these couples access to Pennsylvania family courts to address those issues permitted under the Pennsylvania Divorce Code.
Reprinted by permission of the Lower Bucks Chamber of Commerce, Outlook Magazine, January 2017.
Lawyers are expensive. Most bill for their services by the hour, and there is no question, that can really add up. It is understandable to wonder if it is really worth spending money on legal representation on the purchase or sale of your home? Unfortunately, the answer sometimes comes at the end of the transaction, when it’s too late, the damage is done, and your options are limited.
The purchase of a home is usually the most expensive transaction one makes in a lifetime. It has also become much more complicated with mortgage financing, title issues, homeowners’ associations, etc. Often, the buyer or seller assumes that the form contract is standard and has protections “built in.” They may also rely solely on the real estate agent and title agent to look out for their best interest.
A lawyer who is well versed in real estate and contract law is the best equipped to focus entirely on protecting your interests. A lawyer does not have the pressure to make sure the deal closes; is independent from the pressure of sales and commissions; is able to read the Agreement of Sale, listing agreement, mortgage commitment, title searches and commitment and other related documents with an understanding of your interest and goals.
Unlike other states, including New Jersey, real estate contracts and closings in Pennsylvania are primarily done without the assistance of a lawyer. The real estate agent locates the perfect home, and buyer signs the contract, which is typically pre-printed As a seller, you finally decide to sell your house and you’ve selected the most successful agent in your area. You sign the pre-printed listing agreement. Usually, there is little time to read any of these documents in advance and, in my experience; they are seldom read unless a problem develops post-closing. Over the years, I have seen a number of these issues come back to haunt parties to these transactions, when it is too late to do anything to resolve them.
Some of the potential pitfalls are:
• Buyer may discover that a release is included in the Agreement of Sale which bars pursuit of claims that may develop later or limits remedies.
• Buyer did not realize this limiting language was included in the signed document
• Seller failed to realize that, per the listing agreement, the agent’s right to a commission may extend longer than seller intended or understood.
• Seller may not be able to timely change agents if seller thinks the home is not getting the attention it requires.
• Seller may not realize that a commission is due if the home is condemned and seller receives compensation.
• Seller may not realize that the Seller’s Disclosure Statement, as signed one night at the kitchen table, was not detailed enough and is being used against seller years later in litigation with the buyer that “loved” their home.
Unlike some states, there is no an attorney review clause in the standard Pennsylvania Agreement of Sale. Once you have signed it, it is binding and enforceable against you.
Unlike most commercial real estate purchases, there is no broad due diligence period in a residential real estate purchase. There are provisions for inspections and some contingencies, but they are time limited and tightly worded. Unlike a commercial transaction, you can’t terminate a residential real estate contract because you aren’t comfortable with an easement or local zoning restriction.
There are ways for parties to a residential real estate sale to use the services of an experienced real estate attorney efficiently in such a manner as to minimize legal fees, while protecting themselves from potentially costly problems down the road . It is not necessary to hire a lawyer “soup to nuts”, instead, it is wise to narrow the services to those most critical to protecting your interests, such as:
• You should have a lawyer review all documents before you sign them. Important changes are usually allowed and you will know beforehand what you are signing.
• Your disclosure statement will be accurate and will not be used against you.
• Your title searches will be reviewed by someone who understands them and will point out a title defect or use restriction that may require that you walk away from the deal.
• At closing, your lawyer can be on call to handle any issues that develop at the closing table.
When you consider what is at stake, and the potential pitfalls associated with the purchase or sale of a home, there is no reason to take the chance that everything will work out and go smoothly, when you can retain a lawyer to be available when needed and as needed without incurring substantial fees.
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