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Recent blog posts

naperville property division lawyerDisagreements about financial issues are one common issue that can cause a marriage to break down, and these types of disputes are likely to continue into the divorce process. Matters related to money can be difficult to resolve, but under the law, spouses are entitled to a fair and equitable division of marital property, which includes all assets and debts acquired during a couple’s marriage. Unfortunately, some spouses do not agree with this idea, and they may believe that they are entitled to certain assets or that the other spouse should receive less. In many cases, a person will attempt to hide assets to avoid having to divide them with their spouse. If you are concerned that your spouse is attempting to conceal marital assets, you will want to understand how to uncover these activities and bring them to the court’s attention to ensure that your marital property can be divided fairly.

Methods of Uncovering Hidden Assets

Understanding the intricacies of your family’s finances can often be difficult, especially if your spouse has been primarily responsible for managing money during your marriage. By gathering the right information and looking through financial records, you can make sure you know the full extent of the assets you own. Some steps you can take to find out whether your spouse has attempted to hide assets include:

  • Review tax returns - Looking over the joint tax returns you have filed with your spouse will help you understand the income you have earned and give you an idea of how much savings you should expect to have. This will allow you to identify any discrepancies, as well as foreign bank accounts, real estate holdings, or other investments you may not have known about.

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naperville child custody lawyerWhen parents who have minor children decide to end their marriage through divorce, they will need to address multiple issues related to child custody. As parents work to negotiate a parenting plan, they will decide how parenting time (formerly known as visitation) will be divided. While this will entail creating a schedule that states when children will live in each parent’s home or spend time in the care of a parent, parents will also want to make sure other issues related to parenting time are addressed properly.

Additional Parenting Time Concerns

In addition to providing a complete understanding of when children will stay with each parent, a parenting plan can also address rules and issues that affect parenting time, including:

  • Communication - Both parents will want to maintain communication with their children, and one parent may want to check in on them while they are with the other parent. However, a parent may be concerned that too much communication with the other parent would interfere with their parenting time, or they may not necessarily want to give the other parent a window into their home. Parents can set rules for the appropriate times for calls between parents and children and the methods of communication they may use (such as phone calls, video calls, text messages, or email).

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dupage county prenuptial agreement lawyerIn many cases, couples who are planning to get married may be considering whether they will need the protection of a prenuptial agreement. A prenup can be beneficial in many situations, including cases where one or both spouses own significant assets or have children from a previous relationship. By entering into an agreement that decides how certain issues will be handled if their marriage ends in divorce, a couple can avoid uncertainty, minimize potential disputes, and provide themselves with financial protection. When creating a prenup, it is important to understand how matters related to spousal maintenance (also known as alimony or spousal support) may be addressed.

Modifying or Waiving the Right to Spousal Support in a Prenup

Under Illinois law, a person may have the right to receive financial support from their former spouse if there is a significant disparity between the parties’ incomes. During a divorce, a spouse may ask that spousal maintenance be awarded, and the judge in their case may consider multiple factors to determine whether this type of support would be appropriate. If maintenance is granted, statutory formulas will be used to calculate the amount that will be paid and the duration that these payments will last.

In a prenuptial agreement, a couple may decide ahead of time whether spousal support will be paid, eliminating the need to ask a judge to settle this issue at the time of divorce. A prenup may state that both spouses will waive the right to receive maintenance, or it may specify that one party will receive a certain amount of spousal support for a certain duration. Conditions may be placed on whether maintenance will be paid. For example, the prenuptial agreement may eliminate the right to support if a spouse commits infidelity or only require maintenance if a spouse earns a certain amount of money.

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naperville paternity lawyerIn many cases, when a child is born, the identity of the parents is known. If a child’s mother is married, her spouse will be presumed to be the child’s legal parent. If a mother is unmarried, paternity may be established by submitting a Voluntary Acknowledgement of Paternity (VAP) form. However, there may be some cases in which the identity of the child’s biological father is in doubt, or a person who is presumed to be a child’s father or who has signed a VAP may later find out that they are not the child’s biological father. In these cases, parents will need to understand the procedures that must be followed to dispute paternity.

Denial of Presumed Parentage

A man is presumed to be a child’s parent if he was married to the child’s mother at the time of the child’s birth or if the couple was divorced or legally separated within 300 days before the child was born. If a presumed father believes that he is not the child’s biological father, he can sign a denial of parentage document. However, a denial of paternity will only be valid if the child’s biological father has signed a VAP and the presumed father has not previously signed a VAP or been adjudicated as the child’s father in family court.

Challenging a VAP

In some cases, a man who believes he is a child’s father may voluntarily acknowledge paternity, only to learn at a later date that someone else is the biological father. Within 60 days after signing a VAP, a person may rescind their voluntary acknowledgment by signing a Rescission of Voluntary Acknowledgement of Paternity and submitting it in family court. After the 60-day period, a person will need to challenge a VAP in court, and they will need to do so within two years after the VAP was signed.

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Wheaton divorce lawyerFamilies commonly move to new homes for a variety of reasons, including when a parent is pursuing employment opportunities or because a person wants to live closer to their extended family members. Moving is a decision that married couples or unmarried partners make together. However, it can become more complicated for divorced parents or unmarried parents who do not live together. One parent’s choice to move could affect the other parent’s ability to spend time with the couple’s children, especially if they plan to move a significant distance away from where they currently live. In these situations, a parent may need to request a parental relocation officially. The case may need to be heard in family court, where a judge will decide whether to allow the move and determine how to modify the couple’s parenting plan.

Factors Considered in Parental Relocation Cases

When a parent plans to move, and they have the majority of the parenting time with their children or an equal amount of parenting time as the other parent, they must notify the other parent at least 60 days before the date they will be moving. For parents who live in DuPage County or other nearby counties, moving at least 25 miles away from their current home will be considered parental relocation. If the other parent objects to the move, the parent who is planning to move must file a petition in family court asking for permission to relocate.

A family court judge will consider the following factors to determine whether allowing a relocation and modifying a couple’s parenting plan will be in the child’s best interests:

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dupage county child custody lawyerParents who decide to end their marriage and get a divorce will need to address multiple legal issues. Child custody is one of the most important aspects of a divorce case. However, the laws in Illinois use some terminology that may be unfamiliar to many parents, so it is important to understand exactly what will be addressed in these matters.

Understanding the Allocation of Parental Responsibilities

The Illinois Marriage and Dissolution of Marriage Act (IMDMA), the law that governs divorce cases, does not use the term “child custody.” Instead, it refers to the “allocation of parental responsibilities.” Parents will need to address two separate types of parental responsibilities: decision-making and parenting time.

Decision-making refers to what is commonly called “legal custody.” It addresses the parents’ rights and responsibilities in making major decisions about their children’s lives. The IMDMA specifies that there are four areas where parents will make decisions regarding their children: education (where children will go to school, whether they will receive tutoring, etc.), religion (whether children will attend church or other religious services and receive religious training), healthcare (what doctors children will see and what types of medical, dental, orthodontic, or mental health treatment they will receive), and extracurricular activities (the sports, music lessons, drama clubs, scouting organizations, or other activities children will participate in outside of school).

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dupage county guardianship lawyerUnder the law, adults who are at least 18 years old are presumed to be able to care for themselves and meet their own needs. However, there are some cases where a person may need help from a family member or friend. Those who have physical or mental disabilities may not have the means to support themselves once they turn 18, or elderly people may lose the ability to care for themselves if their health deteriorates. In these cases, another person may be appointed as the disabled person’s legal guardian. Those who are in these types of situations will want to understand the different types of guardianship available in Illinois.

Options for Guardianship

Two main types of guardianship determine the responsibilities a legal guardian will have in certain areas of the ward’s life (the person being cared for). A person appointed as a guardian of the person will provide personal care for the ward, ensuring that they have a place to live and receive the proper nutrition and medical care while also attending to their everyday needs. A person or organization that is appointed as a guardian of the estate will have the responsibility to manage the ward’s property and financial affairs.

For each of the main types of guardianship, a specific form of guardianship will apply depending on the amount of assistance the ward will need and the amount of time a person will serve as their guardian. Depending on the circumstances, a person may be appointed in a:

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Naperville child support lawyersIn most family law cases involving children, child support is one of the most important issues that will need to be addressed. Typically, a child’s custodial parent (the parent who has the majority of the parenting time with the child) will receive child support from the other parent. However, parents may wonder how child support will be handled if they will be dividing parenting time equally. In these cases, additional calculations will usually be necessary to ensure that a child will receive the financial support they need.

Child Support and Shared Physical Care

The state of Illinois uses an “income sharing” method to calculate parents’ child support obligations. Basic child support obligations are determined using a “schedule” that defines an appropriate amount that parents should pay each month based on their combined incomes and the number of children they share. Each parent will be responsible for a percentage of this amount based on the amount they contribute toward the combined income. For example, if one parent earns 55% of the couple’s combined income, they will be responsible for paying 55% of the basic child support obligation. 

Cases where parents share equal or near-equal parenting time are known as “shared physical care,” and in these situations, additional calculations are necessary to determine each parent’s child support obligations. Rules for shared physical care apply in any situation where children spend at least 40% of the parenting time with each parent. This works out to 146 days per year in which children stay overnight at one parent’s home.

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DuPage County family law attorneyIn many modern marriages, prenuptial agreements are used to provide spouses with protection and make decisions about how certain issues will be addressed if the couple chooses to get a divorce. A prenup can make sure spouses can continue to own certain types of property after their divorce, or it can decide whether a spouse will receive spousal maintenance. A properly executed prenuptial agreement can help spouses avoid uncertainty during their divorce and make sure their financial interests will be protected. However, if disputes arise about the terms of a prenup, spouses should be aware that there are certain issues that may cause an agreement to be invalid.

Enforceability of Prenuptial Agreements

When a couple signs a prenup before getting married, this indicates that they both understand the terms of the agreement and are satisfied with the decisions made. However, disputes can sometimes arise during a divorce in which a spouse may claim that the agreement should not be enforced. When these types of disputes are addressed through litigation, there are only a few reasons why a prenup may be found to be invalid. These include:

  • The agreement was not executed correctly - Both parties must sign a prenuptial agreement before getting married. If one spouse did not sign the agreement, or if it was signed after the date of the couple’s marriage, it may not be valid.

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When You Can Extend Child Support Beyond Age 18

UPDATE: In most cases, non-minor support that is paid after a child reaches the age of 18 is related to college expenses and other costs involved in the child's post-secondary education. Parents who are looking to make sure their child will have the necessary financial resources to pursue a college education will want to understand exactly what types of expenses this support will cover. 

Parents may agree on the amount they will each contribute toward their children's college expenses, or a court may order non-minor support to be paid based on the property owned by the parents or the income they earn. After determining an appropriate amount that parents should contribute, this amount will be equitably divided between the parents. 

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Naperville IL divorce lawyerSpouses need to address many different types of legal and financial matters when getting divorced, and attempting to understand the laws that apply to them and the terminology used in their case can sometimes be overwhelming. Spouses who own assets such as retirement accounts or pensions may have heard that they should use a qualified domestic relations order (QDRO). By understanding what this type of order covers and when it should be used, spouses can make sure they will be able to divide their marital assets correctly while addressing any related financial issues.

Using a QDRO to Divide Retirement Assets

All assets acquired by spouses during their marriage will need to be fairly and equitably divided during the divorce process. In addition to physical property, assets may include retirement savings or benefits that may not be accessible by the spouses at the time of their divorce. Contributions made by a spouse to a retirement savings account or pension benefits that a person earned while married may need to be divided either at the time of divorce or in the future.

Typically, the administrator of a qualified retirement plan that is covered by the Employee Retirement Income Security Act (ERISA) can only pay benefits to the person participating in the plan. A QDRO will allow benefits to be paid to an alternate payee. This order will provide instructions to the plan administrator stating that either a specific monetary amount or a percentage of benefits should be paid to a person’s ex-spouse.

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DuPage County spousal support lawyerWhile it is not ordered in every divorce case, spousal maintenance (which may also be known as alimony or spousal support) can be an important factor for some couples. This form of financial support will allow a spouse who relied primarily on their partner’s income during their marriage to support themselves and maintain their lifestyle. However, spousal maintenance will usually only last temporarily, so it is important to understand when it will end and make plans accordingly.

Types of Spousal Maintenance

Depending on a couple’s situation, different types of spousal support may be awarded, and the type of maintenance will affect how long it will be paid. These types include:

  • Temporary maintenance - One spouse may be required to pay support to the other during the divorce process to ensure that they will be able to cover their ongoing expenses. These payments will be terminated when the divorce is finalized, and at that point, any support arrangements included in the divorce decree or judgment will go into effect.

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DuPage County family law attorneyIf you are a parent who is getting divorced, issues related to your children will be some of the most important matters that you will need to resolve. As you work to negotiate a divorce settlement with your spouse, you will create a parenting plan that fully details all decisions related to the allocation of parental responsibilities (child custody) and parenting time (visitation). The determination of how you and your spouse will divide the time that your children will spend in each of your homes will affect many other issues in your case, so you will want to make sure you have addressed this issue properly and made arrangements that will provide for your children’s best interests.

Common Parenting Time Arrangements

There are a multitude of different ways that parents can divide parenting time. When making these decisions, parents should consider the roles that they have played when caring for their children in the past, the feasibility of a proposed schedule, and how they can maintain consistency for their children and work together as co-parents to meet their needs. Some common ways of dividing parenting time include:

  • 50/50 schedules - If both parents have played equal roles in raising their children and providing daily child care, they may be able to maintain these roles by creating a schedule in which they will each have equal amounts of time with the children. In these cases, parents will need to make sure arrangements are in place for transporting children to and from school or daycare, and they will both need to have time in their work schedules to care for their children on a daily basis and on weekends. Parents may use a 2/2/3 schedule in which children stay at each parent’s home for two days during the week while alternating three-day weekends between parents, or they may alternate weeks with each parent or use other arrangements for sharing equal amounts of parenting time.

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DuPage County divorce attorneyEven if you and your spouse own significant assets, you may experience financial difficulties after your divorce. This can occur because of large costs during the divorce process, due to wasting or dissipation of assets by one spouse, or because you have trouble covering your ongoing expenses on a single income. The situation can become even worse if the IRS informs you that you owe money based on tax returns that were filed while you were married. Fortunately, you may have options for addressing this issue and ensuring that you will not be penalized for your spouse’s actions.

Understanding Post-Divorce Tax Debts and Innocent Spouse Relief

Both you and your ex-spouse are responsible for taxes on any joint tax returns you filed while you were married. This means that if the IRS decides to audit you based on any of these tax returns and it determines that taxes are owed, it can take action to collect the amount owed from both you and your spouse. Even if your divorce decree states that your spouse will be solely responsible for these tax debts, the IRS can disregard the court’s orders in these matters and collect money from both of you.

However, if errors on your tax returns were the sole fault of your ex, you may be able to avoid liability through innocent spouse relief. To qualify for relief, you will need to show that any underpayment of taxes occurred because of errors made by your ex-spouse on a joint tax return. At the time you signed the tax return, you must not have known or have had any reason to know about these errors. If the IRS determines that the tax debts are the fault of your ex-spouse and that it would be unfair to hold you responsible for these errors, you will not be required to pay these debts.

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DuPage County family law attorneyEvery year, we publish dozens of blogs about a wide variety of topics related to divorce and family law. Our goal is to provide people with helpful information about issues that they may need to address when getting divorced, settling disputes over marital property or child custody, or handling other matters in family court. Our most popular blogs that people have read over the past year have covered many areas of the law and other issues that affect families, and we encourage you to read these articles and share them with those who may find them helpful:

  1. When You Can Extend Child Support Beyond Age 18 - We look at when divorced parents may be required to contribute to their children’s college expenses or provide other forms of financial support.

  2. Remarriage Can Affect Child Support Payments - While child support payments are typically based on parents’ incomes, in some cases, a parent’s marriage to a new spouse may affect the amount they will be required to pay.

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Naperville IL divorce lawyerWhen you get divorced, you will likely be concerned about your finances. Shifting from sharing financial resources with your spouse to supporting yourself on a single income can be a difficult adjustment, and the decisions made about how you and your spouse will divide your marital assets can also affect the resources that will be available to you. Unfortunately, these issues can become even more complicated and difficult if your spouse has spent, wasted, or destroyed your marital property or if you are worried that they plan to do so. However, with the help of a skilled attorney, you can protect against the dissipation of marital assets and make sure you will have the financial resources you need.

What Is Asset Dissipation?

If one spouse uses marital funds or property for their sole benefit and for purposes unrelated to their marriage during the period where the marriage is undergoing an irretrievable breakdown, this is considered asset dissipation. For example, a spouse could spend marital funds while pursuing an extramarital affair, such as by buying gifts for someone other than their spouse or going on trips with that person and paying for plane tickets, hotel rooms, and meals. Dissipation could also include spending money on gambling or to further a drug addiction, buying expensive items solely for one’s own benefit, or intentionally destroying property.

If one spouse has dissipated assets, the other spouse can make an asset dissipation claim during the process of dividing marital property, asking the court to address this issue by requiring the spouse to reimburse the marital estate for the dissipated assets or grant the other spouse a larger share of marital property. A dissipation claim must be made at least 60 days before a divorce trial begins or 30 days after the end of the discovery process. Dissipation must have occurred after the date that the couple’s marriage began undergoing an irretrievable breakdown, and a spouse cannot make a dissipation claim more than three years after they knew or should have known about the dissipation or for an incident more than five years before either party filed a petition for divorce.

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Naperville IL family law lawyerFollowing your divorce, it is likely that you or your ex-spouse will plan to move to a new home at some point. This is a normal activity, and a relocation may be planned for multiple reasons, such as to begin a new job, to be closer to family or a new partner, or to live in a larger, more comfortable home. However, parents should be aware that a move may require them to make changes to their parenting plan, and in certain cases, they will need to get approval from the court to complete a parental relocation.

When Is Approval Required for Parental Relocation?

A move to a new home is only considered parental relocation if a parent who has the majority of parenting time or shares equal amounts of parenting time plans to move to a new home a certain distance away from the child’s current home. For those who live in counties around the Chicago area (Cook, DuPage, Kane, Will, Lake, or McHenry), a move of at least 25 miles will be considered a relocation. Relocation rules will also apply to a move of 50 miles or more from another Illinois county or a move of at least 25 miles to a location outside of Illinois.

At least 60 days before moving, or at the earliest practical date within 60 days, a parent must notify the other parent and the court where their divorce case was heard. If the other parent does not object to the relocation, and a judge agrees that the move would be in the child’s best interests, the relocation will be approved. If the other parent objects, a court hearing will be held, and the judge will decide whether to grant the move based on a consideration of several factors, including the reasons for the planned move, the reasons the other parent is objecting, the ways the move is expected to affect the child, and whether changes can be made to the parenting plan that will minimize the negative effects on parent-child relationships.

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DuPage County family law attorneyDivorced parents will usually share custody of their children, and when doing so, they will follow the parenting plan that was included as part of their divorce decree or judgment. This document will address the allocation of parental responsibilities (commonly known as “legal custody”), and it will include schedules for parenting time (also referred to as “physical custody” or “visitation”). A parenting plan will provide a framework for how parents will work together to raise their children. Because parents’ and children’s lives may change in the years following a divorce or breakup, modifications to child custody arrangements may be needed. Parents should be sure to understand when these types of changes may be made and the steps they will need to take to do so.

Modifying a Parenting Plan Because of Changed Circumstances

Illinois law states that changes to the allocation of parental responsibilities cannot be made within the first two years following the issuance of a divorce decree or child custody order, although exceptions may be made if the court determines that a child would be at risk of physical or emotional harm in their present environment. Parenting time, on the other hand, can be modified at any time, either by an agreement between the parents or because of a “significant change in circumstances.” After the first two years, legal custody modifications may also be made based on changed circumstances.

Significant changes in circumstances may include any issues that affect either the parents or the children and require changes to how parents make decisions about the children or adjustments to the time the children spend in each parent’s care. For example, one parent may begin a new job that will require them to work during their scheduled parenting time, and they may ask that the schedule be changed to ensure that they can continue to spend the same amount of time with their children. Legal custody may be modified if children experience changes that affect the parents’ ability to make decisions. For instance, a child may experience a serious illness or health condition, and the parent who primarily provides care to the child may ask for the sole authority to make the necessary decisions about the medical care the child will receive.

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DuPage County postnuptial agreement lawyerMost people are familiar with prenuptial agreements that may be signed before a couple gets married. While these agreements can be especially beneficial in situations where one or both spouses own substantial assets before they get married, a prenup can help any couple decide how they will handle certain matters if they ever get divorced. However, what many people may not know is that these types of agreements can also be made after getting married. While some may wonder why a postnuptial agreement would be necessary if a couple did not create a prenuptial agreement, there are many different reasons that couples may choose to enter into these types of agreements.

Situations Where a Postnuptial Agreement May Be Needed

As with prenups, postnups can specify how the division of marital property will be handled during a potential divorce, as well as whether either spouse will pay spousal support to the other. Some examples of cases where spouses may wish to create a postnuptial agreement include:

  • Business ownership - If either spouse starts a new business venture during their marriage or acquires an ownership interest in a business, the business will be considered marital property that may be divided between spouses in the case of divorce. This can raise concerns about whether the business will be able to remain operational, which may also affect the income-earning potential of the business owner. To protect a business from dissolution, a postnuptial agreement can specify how the spouses will divide business assets if they get divorced, such as by stating that one spouse will retain ownership of the business, while the other will receive other assets of a similar value.

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DuPage County property division attorneyWhen spouses choose to end their marriage through divorce, they will need to address and resolve multiple different financial issues. During the process of dividing marital assets, real estate property owned by either or both spouses will be one of the key issues to consider, since these are likely to be some of the most valuable assets a couple owns. In addition to determining how to handle ownership of their marital home, couples may also need to consider other properties they own, such as vacation homes or commercial properties. To ensure that these assets are addressed properly, it is important to work with an experienced divorce lawyer, as well as other experts who can perform appraisals of property and provide guidance about financial decisions.

Factors to Consider When Dividing Real Estate and Other Marital Property

If a couple’s marital home or any other piece of real estate property was acquired during their marriage, it will usually be considered a marital asset that will need to be divided along with other property. However, even if real estate was owned by one spouse before getting married, it may be converted from separate property into marital property if both spouses used the property, made improvements, or contributed to mortgage payments and other expenses related to the home. In some cases, a spouse who owns real estate that is considered separate property may be required to repay the other spouse for their contributions to increased property values or equity in the home.

Divorcing spouses may sell their marital home and divide the proceeds from the sale, or one spouse may retain ownership of the home, while the other spouse receives other marital property of a similar value. When selling real estate property, spouses should be sure to understand whether capital gains taxes will apply to the profits they earn. If one spouse will own the home, the mortgage will usually need to be refinanced, and the other spouse will need to be removed from the home’s title and deed. A spouse who plans to maintain sole ownership of their home should be sure they will have the financial resources to make mortgage payments and pay other ongoing expenses, including utilities, maintenance, and property taxes.

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