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March 2015 Archives

Communications with your Ex's Divorce attorney

Are you getting divorced and represented by counsel? Under the PA Rules of Professional Responsibility, an attorney is not permitted to communicate directly with a party whom they are aware is represented. This applies to that other party as well. These rules are there to protect not only the attorney but also the party. While sometimes you may think it is cheaper and easier to communicate directly with your ex's attorney, it is a mistake. You may say or do something that could jeopardize your case. If you have hired an attorney, it is best to let them do their job and filter everything through your attorney. Your attorney will be able to determine what is relevant and should be conveyed to the other side and what may just simply end at their office. If you are frustrated with your legal fees and working with a middleman, explain this to your attorney and they may be able to offer suggestions on ways to either minimize your expenses or getting the information faster to the other side. Whatever you do, do not pick up the pen, computer or phone and contact the other attorney.

Keeping Medical Records for Support Orders

If you have a charging support order in PA for either child or spousal support, you likely have to pay the first $ 250 in out of pocket medical expenses each year per person before the remainder are allocated based on a percentage. You need to keep good records in order to receive your remainder share. You should create a list per person of all medical bills per person that are received each month and keep a copy of the bill. You will also need to keep a copy of the check or credit card receipt showing that you paid the copay or bill. Once you have reached $ 250 for the year, you should provide the documentation showing that you reached this limit and then start keeping track of all bills that come in for the rest of the year and request the percentage the other side is responsible to pay. You will likely have to front the money and seek reimbursement. In all cases, if payment is not made by March of the following year, you will need to file contempt with the court in your Domestic Relations office and again provide proof of notice and payment. It pays to be organized and you should make this something you do in January of each year. 

Dividing Retirement Accounts in a Divorce

If you are getting divorced, you may have accumulated retirement plans during your divorce. Sometimes clients are surprised when they learn that the retirement plan that they have earned in their own name is subject to equitable distribution. Not only can your current spouse be ordered to be named your beneficiary in the event of your death, but they actually will be awarded a percentage of the benefits at the time of the divorce. It is important from the outset to obtain the plan documents from your plan administrator so that you know what options you have in the event of retirement on the selection of a survivor beneficiary as well as so you know under what terms a spouse can receive a distribution. In addition, just because your court order or agreement awards your spouse a percentage of your benefits, does not mean this is automatically going to be tax free. You must also have the order drafted in the form of a Qualified Domestic Relations Order. Most plan administrators have sample language that they will approve and it is a good idea to ask your plan administrator if they have sample language. You must always have your plan administrator approve the QDRO that is prepared before you send it to the Court to have the Judge enter it as an order. 

Weighing the Cost of Litigation in Divorce

When issues arise in a divorce that are in dispute, parties oftentimes are concerned with being right or getting justice. The divorce action itself, aside from the peripheral issues of custody if there are children, involves money. The court does not assess who is right and who is wrong in wanting to get a divorce. The court generally does not care why someone is getting divorced. The issues before the court are what financial assets does the court need to divide and what are the incomes of the parties with the disparity income between the parties as the biggest driving factor in the outcome of a divorce. When parties have issues that are in dispute, they often either involve a dispute over the value of an asset or the percentage that should be awarded in the divorce. In these instances, a party who is more interested in being right forgets to weigh the cost of proving they are right. For example, if two parties disagree on the buyout figure for a house and their dispute is a matter of difference of $ 20,000, the parties need to step back and weigh the cost of getting the house appraised, bringing an appraiser to testify in court, preparation time for court, time at a court hearing and any court costs and their expected percentage of the asset. When this analysis is done, oftentimes, the party will realize they could spend more in litigation than the amount they hope to gain the dispute. Disputes over financial assets are best settled by compromise. No one is ever going to be right and since courts are not liberal in awarding attorney fees, even if a party's position prevails, the party will still be out of pocket to get to that position. At a minimum, a party must consider at all times the cost of litigation. For each and every dispute, it is important to weigh these factors: the cost to bring the claim, the anticipated cost in legal fees for discovery, preparation and attendance at trial, the amount of time it will take to have the issue determined, the cost of any expert witnesses, the amount of time and money lost from work in order to prepare for court and attend a trial, the emotional and psychological toll both on the party and any witnesses, the importance of preserving the relationship if any with the other party and affect on any common relations. Sometimes, a party may have to give up pursuing being right for the art of compromise because it makes more sense financially and psychologically. Understanding this is something a party needs to do anytime they are involved in litigation. 

Bifurcation

Bifurcation is the process whereby a divorce decree may be granted prior to resolution of the economic rights of the parties. Where granted, the court retains jurisdiction over the parties' equitable distribution claims as well as support claims. Section 3323 (c)(1) of the Divorce Code discusses where bifurcation might be available. If both parties consent to bifurcation, the court can enter a divorce decree indicating that they are retaining jurisdiction over the unresolved issues. In the absence of an agreement for bifurcation, the party requesting it would have to demonstrate why it is necessary. Specifically, the statute states compelling circumstances must exist and there must be sufficient economic protection for the other party.

Support Orders and Retroactivity

Normally a support order is retroactive to the date of filing. If, however, there was a reason someone was precluded from filing for support, say for a physical or mental disability, the support order could be retroactive to the date they could have filed if they had been able. If a party conceals their income, the court could find that they are in contempt of an order that requires material changes to be reported in seven days and the court could retroactively modify the support to the date that they concealed their income. This also requires that the other party timely file once they learn of the misrepresentation. In these cases, a Court can retroactively adjust the amount of arrears on a support order. If there is a change income after a support order is entered that would materially affect the amount of support, it must be disclosed to the other side.

Counseling during a Divorce

Oftentimes when people are getting divorced, there are many emotional issues involved. In instances where one spouse did not want the divorce, or even when they did but they endured physical abuse, adultery, mental abuse, or just the trauma of change that a separation brings, counseling with a qualified therapist or psychologist can be invaluable. While the process of getting divorced brings with it all these emotions, the application of the law of divorce does not consider all these emotions in the actual outcome of the division of the assets or alimony. This can be extremely frustrating for someone who feels that they need to be compensated for all they endured. It is important to be able to separate the emotion of the divorce from the actual application of the outcome of the divorce itself and this is where a therapist can really help someone. Having someone to help through the emotional process is important to be able to be rational when it is time to come to a discussion of the settlement of the assets and alimony. 

Changing Your Name Legally

There are many reasons why someone may want to change their name. It could be they have never really bonded with their parent and want a new last name. It may be that they wish to change their name for business purposes. Perhaps, they are from another country and want to change it formally to another name. Maybe they have always used a different first name. Whatever the reason, in most instance, when someone wants to change their name, they will have to file a Petition for a Name Change with the Court. The costs involved can sometimes be unexpected. In addition to paying for the filing fee that court charges to file the petition, there are fees to have fingerprinting done by the State Police. The Court will also do a credit check. In instances where someone is trying to change their name to escape from the stigma of a criminal record or from creditors, the Court will often deny the petition. There are also fees for publication in both a newspaper of local general circulation as well as in a legal paper. In addition, notice must be given, usually by personal service or certified mail to anyone whose interest may be adverse to the change of name (normally a parent who gave them the name). A change of name in the legal sense under these circumstances requires attendance at a hearing even if the parents do not dispute the change of name. This means that there will be lawyer fees on top of all the out of pocket expenses. Of course, when you remarry or divorce, you do not have to go through the Petition to Change a name. When you marry, you may automatically adopt the name of your spouse and if you divorce, there is a much cheaper option to file for a name change called a Notice to Retake your maiden name that does not require a hearing or publication and usually only a nominal filing fee. It can be done whether a person is an adult or a child. If it is a child, the parent must petition on the child's behalf. In all circumstances, the court will weigh the reasons for the change, an in many cases, a name change will be granted when there is good reason or no opposition. 

What Happens to the Pet in a Divorce

In Pennsylvania, pets are considered personal property in a divorce. Like any personal property, if they were a pet prior to marriage, they go to the party who owned the dog at the time of the marriage. If they were purchased during the marriage, then like any other personal property, either party is entitled to keep the pet. If the parties cannot agree, they can either go to arbitration or they can decide that neither party gets to keep the pet. It is unrealistic to expect that the Court will entertain a custody schedule for a pet in a divorce. In addition, the custody statutes only apply to children. If you want to share custody of the pet, it is something that is best resolved through mediation. Through mediation, the parties can decide what things they want to address to agree on and this can include an agreement to share a pet. If you opt for this, be sure to not only include the schedule for you put, but also who will pay the expenses or how they will be shared, including vet bills, food, regular shots, etc. 

How long will the Divorce take?

If you are getting divorced, or recently filed, you may wonder how long it is going to take to get your divorce. In Pennsylvania, there are two no-fault grounds for divorce which is the vast majority of divorces even if you think you have been wronged. If you are already separated for two years when you file for divorce and have no assets to divide and no alimony issues, it can take as little as two months to get divorced. If you have no assets and no alimony issues but have not been separated for two years, there is a mandatory 90 day cooling off period. In those cases, you can expect your divorce to take about four to five months.

How an Inheritance could hurt you in a divorce

If you are getting divorced and you are entitled to a large inheritance, although the Court cannot distribute your inheritance as part of the marital estate (unless you put it into joint names), it still must be disclosed as part of the divorce process. Inheritance that you are entitled to prior to the divorce due, can hurt you in the distribution of the marital assets even though the inheritance is not marital. One of the factors that the court considers in determining how to distribute marital assets is the separate estate of the other party at the time of the distribution. If you have a large inheritance, this could lead the Master in Divorce or the Judge to decide that you deserve less of the marital estate than they otherwise would award you if you had no inheritance.

How to Approach Debt in a Divorce

When you are getting divorced, most debt, with a few exceptions, accumulated during the divorce is marital debt regardless of the name on the debt. The first step in approaching your debt is to find out what you have. I recommend that you start by obtaining your free credit report. You can obtain one from each of the three major credit bureaus once a year. It may be a good idea to stagger it every three or four months so you can pull one from each throughout the year. Review your credit report to obtain balances, or identify accounts you either did not know about or forgot about. You should also have a title clerk do a search on your real estate to make sure there are no unknown liens on your house.

Post-Judgment Relief

Most agreements submitted to the court for enforcement or final judgments made by the court are difficult to change. There is the option of an appeal or motion for reconsideration within a certain time frame following the decision. The argument at that time is usually that a wrong decision was made based on the evidence presented or there was some error of law. The remedies available for possible modification or amendment to final orders or agreements become more limited as time progresses.

Who provides health insurance during/after the Divorce?

When the parties are married, usually, one of the parties carries the health insurance for the parties and any minor children. The Court keeps the status quo as much as possible while the divorce is pending. If you are carrying insurance for your spouse, you cannot drop them until the divorce is final. Health Insurance is an issue that arises in support court through Domestic Relations. As long as health insurance is available at a reasonable cost through work, that parent will be required to provide health insurance for the children.

Typical Child Custody Schedule for Holidays

In any childs custody case, it is best if the parties design their own custody schedule so that they have more control over the personal considerations in each of their families as well as to include some days that may not be considered an official holiday for court custody purposes. When, however, communication has broken down and it is not possible to come to an agreement even on holidays, the court will often in both New Jersey and Pennsylvania have a routine method of determining holidays. In some counties, it is a pre-printed holiday list that the parties will receive. In others, it is a generally conceived concept. In most cases, the court will alternate holidays on an odd year/even year basis rotating the holiday every year so both parents will have time alternating years. For some holidays, such as Christmas, the court will usually break the holiday into two parts. One parent will have Christmas Eve until Christmas Day and the other parent will have Christmas Day until the Day after and this will alternate each year to allow both parents the opportunity to have Christmas morning every other year.

Ways to Stay Connecting in Custody Cases

One of the sad realities of divorcing when you have children is that there will be times when they will not be with you, sometimes, large periods of time if you are the parent with partial custody or even when you share joint physical custody. Sometimes, grandparents are also faced with separation from grandchildren due to divorce, death of their adult child, or incarceration of their adult child. Although you cannot always be with your child or grandchild, there are things that you can do to ensure that you are still connected to their life on a regular basis.

Living Together During Divorce

Sometimes when parties are divorcing, they continue to reside together under one roof while the divorce is pending. This can be the situation for many reasons. One reason may be that neither party has sufficient income to live on their own. It may be that all their funds are tied up into the house and they do not have a significant payment to put down on another residence. Sometimes, they both want to keep the house in the divorce. In others, it may be that neither wants to move out when there are children involved. Whatever the reason, it can be very difficult to live together while the you are divorcing and setting some ground rules may be in order.

Earning Capacity in a Divorce or Support Action

If you are getting a divorce and there are child or spousal support issues involved in your case, the Court can hold you to an earning capacity if you are not working or you are not fully employed. What this means is that Court can assess you with a potential income based on your work history, education, skills, or even possible earnings. For example, if you work 15 hours a week and earn $ 20 an hour, there is a good chance the Court can impute earnings of 40 hours a week at $ 20 and hour on you when they determine support. This does not mean you have to work 40 hours but it means that income will be used to determine how much support you will receive from the father of your spouse.

Support for Adult Children

A child support obligation typically ends when the minor child is eighteen or graduates high school, whichever is later. However, in certain circumstances the obligation for support may continue past those milestones. One example would be if the child has a disability. Pennsylvania courts have held that the child support guidelines would continue to apply in the instance of a child who, despite age, remains unemancipated or unable to support themselves by virtue of a disability. The court is to determine if an adult child has a mental or physical condition that prevents the child from earning a living wage. Additionally, the court should look to see whether an order of continued support would result in undue hardship on the parents.

What Happens to the Divorce if you Spouse dies?

If you are getting a divorce, what happens if your spouse passes away before it is finalized? Under Pennsylvania law, if you have established grounds for divorce, the Family Court may still proceed with equitable distribution of your assets. They cannot grant a divorce posthumously, but you can still seek your share of the assets that you both accumulated while you were married. This is especially important in cases where the assets are held in your spouse's name. You will need to file a Petition to substitute your spouse's estate as the other party.

What to wear to Family Court

What you wear to Family Court is less important than how you act when you are there. That being said, however, it is important that you give the Court the respect it deserves. Do not show up wearing flip flops, tank tops, shorty shorts, beat up jeans, sneakers. Whether you have a conference or you have a hearing before the Judge in a Courtroom, you should dress like you were going to Church back in the day when people dressed appropriately for Church. If you have tattoos, cover them up. If you have piercing or gage earrings, take them out. Since Family Court is often based on subjective opinions, it is best to not give any reason to the Court to side against you, whether they do so consciously or not.

Divorce and When to get the House Appraised

If you are getting divorced and own a home, the value of the home is considered for purposes of equitable distribution. If the home was owned by you prior to the marriage and remained in your name alone, the increase in value of the home from the date of the marriage until the date of separation is considered marital. In this case, you should get two appraisals done on your house, one from the date of the marriage and one as of the date of separation.

Dating During and After the Divorce

When you are going through a divorce, you may wonder whether you should be dating and if you do how it will impact your case. Once you are separated, even though the divorce is not yet final, you are permitted to date without it being considered grounds for adultery in the legal arena. While adultery is a factor in the consideration of an award of alimony, it refers to relationships that began prior to a separation not after. Once a divorce complaint is filed you are clearly separated and for some that may now involve the choice to date. If you are entitled to support or alimony, you may date both during the divorce or afterwards. As long as you do not cohabitate, it will not affect your alimony award. Cohabitation can be found even if the other person has their own residence if they spend significant overnights with you.

When a Parent withholds custody

As detrimental as it is to the children of a separation or a divorce, sometimes one parent chooses to withhold the children from the other parent. They may feel they are the better parent and are protecting the children. They may just be angry and want to use the children as pawns to get back at the other parent. They may feel they have the right to determine the custody schedule for various reasons. Regardless of why a parent is withholding the children and keeping them from the other parent it is not something that either parent should take into their own hands. If you are the parent who is not seeing your children, you need to immediately file for emergency custody in the county where the children reside if they have been there for at least six months. If the children have not bee in that state or county for six months, then you need to file emergency relief in the state or county where they last resided for six months. If your ex moved out of state with the children less than six months prior, you will want to also seek relief that includes returning the children to the state, and possibly alerting the authorities if the other parent did not disclose their whereabouts. Waiting to file with the court can impact your case as the court will question why something was not done sooner. In addition, you should record all attempts that you make to contact the children both before and after you file. This could be text messages, letters sent to the house, phone calls made, and attempts to visit. You should be careful, however, in remaining calm as sometimes the other parent will then allege harassment or file a Protection from Abuse in an attempt to further gain control in custody. As difficult as it will be waiting to get into court, the sooner you file the sooner the court can remedy the situation.

What happens if I don't want a divorce?

Pennsylvania has two no-fault grounds for divorce. One is where both parties consent after 90 days of one being served the complaint and the other is where one party does not consent and the other party moves the divorce forward after a two year separation. If your spouse wants a divorce and you do not want a divorce, ultimately, unless they change their mind, they will be granted a divorce. Even if you have children and you contest that it is not in the best interest of the children, if your spouse does not wish to be married anymore, ultimately, the court will grant a divorce. You can delay the divorce by not consenting to the divorce. This will force your spouse to wait the two year period from when you separated before they can move the divorce forward. Even at that point, you can still contest that it is not irretrievably broken or that the two year separation has not occurred. You can say discovery is not completed and further delay the divorce or file an appeal. While there are many ways that a divorce can be delayed, ultimately, it will become final if one of the parties wants a divorce. The day will come when the marriage will end. While you may not want a divorce, you should weigh the benefits of delaying it against the costs. Unless you really think there is a chance of reconciliation if you delay it, or you benefit financially for health insurance purposes, sometimes, moving on quicker and accepting the ultimate outcome is better. It enables you to heal quicker and create a life that does not involve the pain and emotional turmoil that a drawn out divorce creates. It also may be financially better to have the finality and save in extended legal fees. Finally, it may also make it possible to move on to a different relationship with your ex-spouse where you are able to maintain a civil relationship verus one filled with resentment for keeping them in a marriage that they no longer desire. 

Married Same-Sex Adoption

Today marked the completion of my first same-sex step-parent adoption. Prior to May 2014, a same sex couple had to follow the steps for second-parent adoption which required a home study as opposed to a step-parent adoption which did not. However, in a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania's laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth Amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners can also benefit from the simpler process of a kinship or step-parent adoption. 

Child Support and Child Custody in a PFA order

Under the Protection from Abuse Act, a Court can, as part of the order granting a protection from abuse, also issue terms on custody of the minor children as part of that order.A Protection from Abuse order can be granted in Pennsylvania for up to three years. If an order includes a provision for custody, this does not mean that the other parent will not get to see the children for three years. If an order is entered that contains custody provisions, it is very important if the order is entered against you that you file for custody through the Family Court in the county where the Child resides. The Court in Family Court will determine custody and the terms of that custody order will override the terms in the Protection from Abuse Order. Likewise, if you receive a Child Support order as part of a Protection from Abuse Order, you must file for child support within two weeks in order to continue to receive child support. You file for child support at Domestic Relations. As long as you file for child support within the two week period, you will continue to receive support under the PFA order until Domestic Relations has its hearing and enters a new child support order. If you fail to file in the two week period then the child support in the PFA will terminate and you will not get support until you file and have a hearing through Domestic Relations. 

Self-Employed Parties and Support

It is important to take a very close look at the finances of a self-employed party in a support case. Generally, actual earnings will be utilized to accurately measure the income available for support and ability to pay. However, in a few circumstances, including at times the case of a self-employed party, earning capacity may be used instead to effectuate economic justice. For example, a self-employed party may reduce the salary they pay themselves in order to try to reduce the support obligation. Additionally, many self-employed parties claim a lot of deductions on their tax returns before reporting their net income. A portion of these deductions may be added back when the court is trying to determine a more accurate figure for income. 

How to Divorce a Spouse you cannot locate

If you want to divorce and are not able to locate your spouse, it is not completely hopeless to get a divorce. There are challenges involved that are different than when you have an address for a spouse. In order to divorce your spouse without an address or location, you will need to first make attempts to locate your spouse. Your attempts need to be documented. Some ideas would be to send mail to their last known address and save the envelope showing that it was not deliverable and that there is no forwarding address. You may also want to contact relatives of your spouse and keep copies of letters or calls you have made to attempt to locate them. You may also want to get statements from relatives or prior coworkers indicating that they have no idea where your spouse is located. You may even want to hire a professional to try to locate them through their date of birth or social security number. You may want to contact the Post Office and request freedom of information for a forwarding address. If, after you have exhausted all attempts to find your spouse and you still have no success, you can then petition the court to serve them the divorce by publication. You should be prepared for the costs of publication. Newspapers charge based on the number of words, and it is not unreasonable to expect that this cost will exceed $ 1000, even if you have no assets to divide which is the case in most divorces that involve a missing spouse. 

Pennsylvania Inheritance Tax

Pennsylvania is one of a handful of states that requires a tax paid on inheritances. There is also a federal estate tax, but your estate is exempt as long as your estate is valued at less than $5,430,000. Pennsylvania, on the other hand, has no minimum threshold.

Warranty of Habitability

There is an implied Warranty of Habitability when you rent a premises in Pennsylvania. In other words, the rental unit must be habitable: i.e. there must be water and heat, and the property must be safe and sanitary.

Advertising the estate

In Pennsylvania, executors have a duty to pay all debts prior to distributing assets to the beneficiaries. Normally, creditors may file a lawsuit against a party prior to the expiration of the statute of limitations, which runs for several years (for example, a breach of contract claim has a 4-year statute of limitations). As executors usually wish to finalize the estate and beneficiaries seek their inheritances well in advance, Pennsylvania has provisions to shorten the statute of limitation period for estates.

Equitable Distribution and Worker's Compensation

One asset in equitable distribution or support that parties should consider when getting divorced is worker's compensation awards. Depending on what state the worker lives, there may be a component not only for lost wages but also an award comparable to a personal injury award. In these instances, the lost wages should be calculated into any support award and the again, you will need to decide whether you want to lump sum the award portion as either income for purposes of support or as an asset for purposes of equitable distribution. In the event that it is considered as income, you cannot double dip and claim it as an asset. If, however, the award is for an injury that occurred outside of the marital period, either before or after separation, you will need to include it as income as you cannot include it as an asset. Your support order should be very detailed and specific and identify exactly what portion of any worker's compensation is included in the calculation of the income. Whether to have the worker's comp treated as an asset or income really depends on how the court will treat the asset. In some instances, the court may award the majority of that asset to the injured party and it may be better to then include it income if you are also eligible to receive support. Speaking with your attorney about the expected amounts would be wise to do before you make that decision so that you can decide whether it is better as support or as an asset. 

Income or Asset? Avoid the Double Dip

Oftentimes when getting divorced, an asset the generates income can either be considered in equitable distribution or in support. For example, if you receive stock options as part of your employment, they are considered an asset for purposes of divorce. If you cash them in during the divorce, it will either be considered an asset for income, but not both. If you have a pension that accumulated during the marriage and it goes into pay status during the divorce, or if it is already in pay status at the time of the divorce, it may be considered an asset or income but not both. You need to be careful that if you have a support order that the income from that pension or the stock option is not considered into the incomes if you want to have that asset considered an asset for equitable distribution. You need to be very careful that any support order entered specifically states whether any of the income was included, and if so, how much.

Stepparents and Custodial Rights

Under the custody laws, when parents split up, both parents often will go to court or come to an agreement on a custody schedule. What happens, when a parent and a non-biological parent separate? Oftentimes, the non-biological parent may have been very involved in the child or children's lives. If that non-biological parent did not adopt the child, they can still sue for visitation and/or custody of the child or children under in loco parentis. This means that they have the right to go to court to seek scheduled time with the children, be that primary custody, partial custody or visitation even though they are not the biological parent and even if both biological parents have their own custody schedule.

When and where to file for Child Support in Pennsylvania

Child support is a remedy afforded to the parent who has the majority of time with the children or who has equal time but makes less money. Child support may be filed either in the county where the child lives, the defendant lives or the defendant works. In Pennsylvania, child support is based on guidelines so no matter what county in Pennsylvania you choose to file, the amount should be the same and the money is all funneled through the PACSES which is located in Harrisburg. The difference may be procedure, time and how many steps it takes you to see the Judge. For example, in Bucks County, PA, you will attend a lower level conference and if not resolved it will be scheduled for a Judge within a few weeks. In Philadelphia and Montgomery Counties, however, you will first go to a conference, then to a Master's Hearing and then to a Judge.

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