More predictability for Maintenance Awards in Illinois starting January 1, 2015

Despite the new guidelines, a Judge may deviate from the payment amount and/or duration of the payments if he or she finds that there are compelling reasons to do so and makes specific findings regarding that deviation.
Despite the new guidelines, a Judge may deviate from the payment amount and/or duration of the payments if he or she finds that there are compelling reasons to do so and makes specific findings regarding that deviation.

There is a significant change to maintenance awards (formerly known as alimony) effective January 1, 2015 under the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).   Under the old statute, Judges were given very broad discretion to decide a maintenance award after weighing several factors.  The problem with the old statute was that a maintenance recipient with the same set of factors could be given a vastly different maintenance award among different Judges within the same courthouse and on a broader scale, between state counties.  The changes to the maintenance statute include new objective calculations to determine a maintenance amount and duration, thus giving both parties more predictability and hopefully ensuring more consistency among Judges and Counties.

The new law involves a two-step process. First, the court determines whether maintenance is appropriate, based on factors including but not limited to the length of the marriage, the employment and employability of the parties, and the financial needs of the parties.   Next, once the court determines that maintenance is appropriate, so long as the combined gross income of the parties is below $250,000 and no multiple family situation exists, it applies the guidelines to calculate a monthly payment amount, with a fixed term of years for the payments which is dependent on the length of the marriage.

In guideline maintenance cases under the new law, the math starts with taking the difference of 30% of the payor’s gross income and 20% of the payee’s gross income.  This is the maintenance award (with a built-in cap that allows the payee spouse to receive in total no more than 40% of the parties’ combined gross incomes).   To determine the length of the award, a multiplier is used taking into account the length of the marriage.  For marriages 20 years and more, the length of the maintenance could be the length of the marriage or it could be permanent.

Despite the new guidelines, a Judge may deviate from the payment amount and/or duration of the payments if he or she finds that there are compelling reasons to do so and makes specific findings regarding that deviation. 

Another unique change to the maintenance statute is that for marriages of less than 10 years, the court may now designate the termination date as a “permanent termination,” rather than allow the payee spouse to ask for additional maintenance at the end of the term, which appears to be implied for marriages which are greater than 10 years in length.[i]

The new maintenance rules should make it easier for divorcing parties to calculate maintenance awards in advance, and with that anticipated certainty, it may be easier to settle more divorce cases with less litigation, saving clients time and money.   In Illinois, maintenance can be awarded on a temporary basis at the beginning of a family law matter as well as at the conclusion of the case and may be reviewable at a set date or upon a substantial change of circumstances among the parties involved.

As a family law practitioner, one of the biggest issues with divorce cases involving a potential maintenance award is being able to predict what the outcome may be for the client.  The new statute and guidelines do offer more objective criteria so that is appealing.   However, the rigidity in the duration of the award can be concerning as I do not believe it provides incentive for the payee spouse to seek and obtain employment and become self-sufficient, which in many cases are the main goals of a maintenance award.   If the spouse knows that he or she is getting a fixed amount regardless of whether he or she goes back to work, then I can see situations where there will instead be a disincentive to make those efforts at becoming self-supporting.  Only time will tell whether the positive aspects of these changes outweigh the negative ones.

To learn more about Law Office of Jennifer Guimond-Quigley and the family law services Jennifer provides, please visit the firm’s website, Facebook and LinkedIn sites. Jennifer frequently shares resources and tips for Chicago area families experiencing a variety of family-related concerns.

[i] 750 ILCS 5/504 (b-4.5) effective Jan 1, 2015.

REMOVING CHILDREN FROM THE STATE IN PARENTAGE AND DIVORCE CASES

When parents residing in Illinois disagree on one parenting moving out of state with the child(ren), the parent wishing to move must seek approval from an Illinois court.
When parents residing in Illinois disagree on one parenting moving out of state with the child(ren), the parent wishing to move must seek approval from an Illinois court.

Few people dispute that it is in the best interest of children to have both fit parents actively involved in their lives.  In an ideal world, that would involve co-parenting and parents sharing time and opportunities to be a consistent and supportive presence in their children’s lives.  Sometimes, however, situations arise for one of the parents that can lead to a change in the parenting arrangement.   A parent can be offered an opportunity to move out of state for employment or to accompany a new spouse for a new job or job reassignment.

When parents residing in Illinois disagree on one parenting moving out of state with the child(ren), the parent wishing to move must seek approval from an Illinois court.

In some cases, a mediator may help the parents find a solution that works for everyone.   However, the reality is that the parent remaining in Illinois will usually be left with much less parenting time or exercising parenting time will become much more costly and for these reasons, parents usually come to an impasse on the subject of removal.  If litigated, a judge will consider the totality of the situation, including but not limited to the age of children involved, their preference (if of sufficient age), the opportunities for the parent in the new state, the opportunities for the child(ren) in the new state, the effect on the current parenting schedule, the financial impact travel will have on the noncustodial parent, the presence of extended family in the new state, and any other factor that the Court determines is relevant to the best interest of the child.   The burden of proof that the move is in the best interest on the child(ren) is on the party wishing to move.

Illinois provides statutory guidelines for removal cases and case law has provided additional clarification in interpreting the statute.

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) states in pertinent part as follows:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” 750 ILCS 5/609(a)

The factors the court will consider in deciding permanent removal cases are as follows[i]:

  • The likelihood for enhancing the general quality of life for both the custodial parent and the children;
  • The motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation;
  • The motives of the noncustodial parent in resisting the removal;
  • The best interests of a child to have a healthy and close relationship with both parents, as well as other family members; and
  • Whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

For more information about temporary or permanent requests to modify a parenting agreement to allow for the removal of a child from Illinois, please contact Jennifer Guimond-Quigley.

To learn more, please visit the firm’s website, Facebook and LinkedIn sites.

[i] In re Marriage of Eckert, 518 NE 2d 1041, 119 Ill. 2d 316 (1988)

Illinois women are protected by a new law: The Pregnancy Accommodation Act

The Illinois Human Rights Act will cover pregnant women and those who recently gave birth.
The Illinois Human Rights Act will cover pregnant women and those who recently gave birth.

Many challenges face women who are pregnant or recently gave birth.  I know from firsthand experience that the stress and anticipation of a pregnancy and new baby are compelling.  The last thing an expecting or new mother needs is a workplace or state that fails to recognize and accommodate their unique needs.  Illinois became a state that requires employers to observe the needs and requests of mothers when Governor Quinn signed into law, the Pregnancy Accommodation Act, (HB0008) also known as “The Pregnancy Fairness Bill” this August 25, 2014.

The Illinois Human Rights Act covers pregnant women and those who recently gave birth.

The new law amends the Illinois Human Rights Act to include pregnancy as a protected class for purposes of safeguarding current and recently pregnant women from unlawful discrimination by employers. Under the new law, pregnancy is added to the list of protected class designations including race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation and unfavorable discharge from military service.

The Pregnancy Fairness Bill established a process through which expecting or recently delivering mothers may request special accommodations. This is different from the federal law that prevents employers from treating pregnant employees differently, the Pregnancy Discrimination Act of 1978; “Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color , religion, sex, or national origin…amended  to include ‘because of or on the basis of pregnancy, childbirth, or related medical conditions’.[i]

Women who make a request for accommodations have new protections under the new law.

The federal law, while protecting women from being hired, fired, or discriminated against, does not address any special accommodations for the health and wellness of a pregnant mother. The Pregnancy Accommodation Act, a state law, protects Illinois women who make a request for pregnancy accommodations in accordance with Illinois law. The new law protects women who are pregnant or recently gave birth as follows[ii]:

  1. Failing to make requested reasonable accommodations that pose no undue hardship to the employer;
  2. Denying employment to pregnant applicants;
  3. Taking adverse action based on the need to create reasonable accommodations;
  4. Forcing pregnant women to accept unrequested accommodations;
  5. Forcing leave if reasonable accommodations can be provided for; and
  6. Failing to reinstate the employee to an original or equivalent position, pay, seniority, and benefits.

Many childbearing aged women in Illinois and their families should benefit from the new law.

The number of women making up the Illinois workforce is significant. Many of the jobs requiring standing, lifting and movement generally (such as sales, food service and delivery) will hopefully now be safer for women who are expecting and raising newborn children.   Additionally, women who take leave to care for their newborns will hopefully worry less about their jobs being gone when they are ready to come back to work.   Lastly, women who choose to breastfeed should expect that reasonable accommodations will be made for them to pump or otherwise express breastmilk while at work.  These changes are not difficult and the vast majority of employers see the utility in making these accommodations and do so voluntarily.    Too often, however, I hear stories from mothers of the small percentage of them that don’t and now there will be some identifiable recourse for those individuals.

Jennifer Guimond-Quigley is an attorney and most importantly, a mom.  Jennifer is passionate about empowering the community by communicating about legislation that affects and benefits families.  To learn more, please visit the firm’s website, Facebook and LinkedIn sites.

[i] Pregnancy Discrimination Act, 42 U.S.C. § 2000(e)(K).

[ii] Illinois HB0008, Illinois Pregnancy Accommodation Act – proposed in 98th General Assembly

Discussion Points For Parents On The Topic Of Estate Planning For College Kids

DISCUSSION POINTS FOR PARENTS ON THE TOPIC OF ESTATE PLANNING FOR COLLEGE KIDS

This fall, as college kids prepare to head back to school, they should consider adding estate planning to the to-do list.   It is important to realize that one does not need to be a senior citizen or in bad health to properly prepare for life’s unexpected events.  Additionally, estate planning is not just for the wealthy – there are many benefits to a young adult having a plan in place even when they are just starting out.

There are very real risks that students can face when they are away from home.  Whether it is a spring break mishap or an accident in a campus parking lot, the unexpected can happen to college students while they are away.   Nothing is more fearful for a parent than the thought of their son or daughter being away at school and an accident renders them unconscious and unable to make their own medical decisions.  Parents or other trusted adults could be hundreds or thousands of miles away and unable to assist the child from afar without a properly executed healthcare power of attorney to fax in to the medical treater.

While it’s true that the child may appoint any adult who is at least 18 years of age as his or her agent, for many college students, the most appropriate person to appoint will be one of his parents.  For many college students, their parents know them better than anyone and are best able to advocate on the child’s behalf for what that child wants.  However, whether the agent chosen is a parent or another trusted adult, making sure these documents are in place assures the child that the person who has the clearest idea of what is in his or her best interest is the only person with authority over those decisions.

College-aged kids are busy and focused on school and the excitement of being away from home for the first time; understandably, they are not necessarily thinking of death and disability.  Parents should help their kids see the need for planning and remind them that once a child reaches the age of 18, a parent no longer has legal authority over that child’s financial or healthcare decisionmaking.  When having a conversation about estate planning with their children, parents do not need to be grim; instead, they should explain that being proactive is key to being a responsible adult.  The following is a list of estate planning considerations that can be your roadmap in helping a son or daughter think seriously about what could happen in the event of death or disability.

  1. Healthcare Power of Attorney and Mental Health Declaration.

An Ilinois Healthcare Power of Attorney allows the principal to appoint an agent to make health care decisions when that individual is unable to do so.   An Illinois Mental Health Declaration allows the principal to appoint an agent to make decisions related to mental health treatment.  A son or daughter may have specific wishes for healthcare and mental health treatment that could be surprising to the parent or other designated adult agent, so having the discussion and being prepared is important for the entire family.

  1. Property Power of Attorney.

The Illinois Property Power of Attorney works like its healthcare counterpart in granting an agent financial powers in the event of the principal’s disability.   The property power of attorney can also be effective without a disability if the child wishes the parent conduct business on his/her behalf for convenience.  For example, I had a small savings account at a bank in my hometown that I wanted to close after I had moved away from home.  Because I was so far away, I had my mom, as my agent, liquidate the account and close it and she was able to do so on my behalf through a Power of Attorney.

Being able to access the child’s school grades and records, pay bills from his or her checking account, collect his or her mail, pay his or her taxes, and the like are important if your child becomes incapacitated.  Depending on the length of disability, an apartment lease may need to be terminated early and the contents and furnishings will need to go somewhere, so again, it is important that the child designates a parent or another trusted adult in this role so that their matters are handled appropriately.

  1. Last Will and Testament.

A college-aged child should also think about their last wishes.  Their assets and property must be marshalled and distributed, creditors must be paid, and funeral and burial arrangements must be made. Approaching your son or daughter to ask them about getting a will written may be uncomfortable, but you might also be surprised by their willingness to discuss this difficult subject and to express their desires and wishes.

Take the time and discuss estate planning with your son or daughter before they head off to school later this August.  They may want to put it off, but there is peace of mind in knowing that a simple preventative estate planning measure can and will make life much easier in matter of illness and death.

Attorney Jennifer Guimond-Quigley is experienced with the Illinois law and practice of drafting, and when necessary, litigating to enforce or challenge estate plans.   To learn more, please visit the firm’s website, Facebook and LinkedIn sites. Jennifer frequently shares resources and tips for Chicago area families who work hard to preserve that which they have worked a lifetime to achieve.

Penny-wise and pound-foolish: The dangers of do-it-yourself estate planning

Now that many legal sources are available online or in “kits” at your local office supply store, people try to do their own legal work, often to their detriment.
Now that many legal sources are available online or in “kits” at your local office supply store, people try to do their own legal work, often to their detriment.

There is a popular book by Andrew Keen, titled “Cult of the Amateur,” that talks about the recent increase in do-it-yourself activity by consumers who are trying to save money. From bloggers who think they are journalists to DIY lawyers (non-lawyers doing their own legal work), people may fall short and miss the mark when they act without experience and wisdom.

Now that many legal sources are available online or in “kits” at your local office supply store, people try to do their own legal work, often to their detriment.

Some legal procedures are very easy and straightforward, while others are more complex. The problem many people face, unknowingly, is the possibility of “unknown unknowns,” meaning they are not aware of the unknown conditions or events that could seriously affect the plan they have laid out. Experienced attorneys, however, are trained and skilled in knowing a general list of contingent events and outcomes and that experience value is significant.

Do-it-yourself estate planning can go wrong and significantly harm families.

Courts will invalidate improperly executed estate planning documents, leaving named beneficiaries in the dust. If a court invalidates a will, the heirs at law of the decedent will become the beneficiaries of the estate instead of the named beneficiaries, and those two lists of individuals may be vastly different and not at all what the testator had in mind.

The Florida Supreme Court highlights an example of a bad outcome for a DIY estate planner[i]. Ms. Ann Aldrich (“Ann”), prepared her own will using an “E-Z Legal Form.” Ann filled out the blanks on the standard form, with the intention that certain property and assets go to her sister, Mary Jane.  She further provided that in the event of Mary Jane’s death, she wished that the property would instead pass to her brother, James Aldrich.   Ann then created a hand-written amendment years later after Mary Jane’s death that reiterated Ann wanted her entire estate to pass to James.   Upon Ann’s passing, the amendment was found to be invalid due to improper execution.

The court will not assume what the testator meant to do when writing their own will.

Ann’s will was very specific regarding the assets she gave to Mary Jane, and then to James. What Ann’s will did not address or include, however, was a “residuary clause” to deal with any later-acquired assets.  As a result, James only received those specifically named assets in Ann’s will and the rest of her estate, which was not mentioned specifically or through a residuary clause, passed to her heirs at law.  This does not appear what Ann wanted given that she specifically provided for only two named individuals when she originally drafted her Will and given her amendment, which unequivocally contained her intentions.

Had Ann spent the time and money to hire an experienced estate-planning lawyer, her will could have easily included the proper legal language to include any assets and property received from other sources after the date the will was drafted, and her intended beneficiaries would have received those funds. This is an excellent example of what can happen with the DIY estate planner relies on a form out of a box, a form that does not give legal advice, a form that doesn’t ask Ann about all the potential outcomes.

Justice Pariente thought it necessary to include the following language in the opinion that was issued in the case arising out of Ann Aldrich’s estate:

I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.  As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees – the precise results the testator sought to avoid in the first place.”

Take the proper steps to protect yourself and your family and employ an experienced attorney when you care about the disposition of your assets and property when you pass.

In estate planning, the testator who writes their own will is no longer available to clarify their intentions. All the courts can do is rely on the law and what is written when DIY estate planning forms are used. To ensure your will follows the law and is properly written, it is highly recommended you employ the assistance of an experienced estate planning attorney.

Attorney Jennifer Guimond-Quigley is experienced with drafting Illinois-based Wills and Trusts, and (when necessary) litigating to enforce or challenge estate planning documents. To learn more, please visit the firm’s website, Facebook and LinkedIn sites. Jennifer frequently shares resources and tips for Chicago area families who work hard to preserve that which they have worked a lifetime to achieve and ensure their wishes are carried through effectively.

[i] Supreme Court of Florida, Aldrich v. Basile, No. SC11-2147, Mar. 27, 2014.

Prenuptial and postnuptial agreements: Creating predictability in matters of love and marriage

Premarital agreements are also a good way to protect premarital assets and family-run businesses from later claims by the spouse, should the marriage end. We often see examples of how marriage can be a blessing or a curse. With articles in social media and programs on television highlighting everything that can go wrong, it is no wonder people are a little nervous to get married these days. One way of easing the stress associated with taking the plunge is to execute a Premarital agreement.

Premarital agreements offer the wedding couple peace of mind in knowing what will happen to property, debts and other benefits of marriage in the event the marriage ends by way of divorce or death of one of the parties. Premarital agreements are extremely important in second marriages, especially when children are involved. Entering into a premarital agreement can help the couple decide under what conditions one of the parties may receive maintenance payments, what assets will be preserved for the benefit of the children from the first marriage, and what debts will remain with one of the parties. Of course, there are some provisions of the Illinois Marriage and Dissolution of Marriage you cannot change with a premarital agreement, such as child support, and those potential obligations should be considered when contemplating a premarital agreement.  Premarital agreements are also a good way to protect premarital assets and family-run businesses from later claims by the spouse, should the marriage end.

Attorney Jennifer Guimond-Quigley is experienced with drafting, negotiating, and interpreting Illinois prenuptial and postnuptial agreements. The source of law controlling premarital agreements is the Illinois Uniform Premarital Agreement Act[1] (“IUPAA”) enacted by Illinois as of December 2009, and applying to premarital agreements executed or modified on or after January 1, 1990. To be enforceable, the premarital agreement must be in writing and signed by both parties. Full disclosure of each person’s assets and liabilities is a key factor in enforcing the agreement. If one of the parties to the agreement knowingly fails to disclose debts, property, or income, the agreement is voidable. Premarital agreements must be voluntary and if one party is pushed into one or tricked (in the event of lack of full financial disclosure) the agreement may not be enforceable.  It’s also good practice for both sides to be represented by independent counsel.

If a premarital agreement is challenged in court (in the event of death or divorce terminating the marriage) the statutory rules control the outcome of a challenge to enforce the agreement. Under the Uniform Premarital Agreement Act parties to a premarital agreement may contract to the following[2]:

  • (1) the rights and obligations of each party in any of the property of either or both of them whenever and wherever acquired or located;
  • (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  • (3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  • (4) the modification or elimination of spousal support;
  • (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  • (6) the ownership rights in and disposition of the death benefit from a life insurance policy;
  • (7) the choice of law governing the construction of the agreement; and
  • (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

On the other hand, married couples may not have a prenuptial agreement, but are having issues and one or more parties are contemplating divorce.  Or, a spouse may be asking the other spouse to quit their job and become a stay at home parent, thereby reducing or eliminating that spouse’s employability outside the home.  A postnuptial agreement (as opposed to a prenuptial agreement) can address those concerns to ensure the spouse who is giving up a career or who agrees not to proceed with a divorce action can be assured that he or she will have an equitable outcome down the road if there is a separation or divorce.

On the other hand, married couples may not have a prenuptial agreement, but are having issues and one or more parties are contemplating divorce.  Sometimes peoples’ circumstances significantly change and a couple may want to amend or cancel a previously executed premarital or postnuptial agreement. The same rules of voluntary disclosure apply to amending agreements. Additionally, some couples may want to save time and money by drafting and executing their own agreement by trying to find an online form and providing each other with a list of their assets and liabilities.  While I encourage parties to attempt to work out the major details of their prenuptial agreement themselves (if possible) and to submit a preliminary list of that proposed agreement along with their list of assets, liabilities and income, it is not advisable for a couple to actually draft and execute the agreement without seeking counsel to ensure that the agreement meets the requirements of Illinois law.

Attorney Jennifer Guimond-Quigley is experienced with drafting, negotiating, and interpreting Illinois prenuptial and postnuptial agreements. To learn more, please visit the firm’s website, Facebook and LinkedIn sites. Jennifer frequently shares resources and tips for Chicago area couples in the process of partnering up in marriage or civil union or ending their relationship.

[1]750 ILCS 10/1 et seq.

[2] Source: 7 Nichols Ill. Civ. Prac. § 131:88; Nichols Illinois Civil Practice; Database updated May 2013; Part XII. Special Remedies and Distinct Types of Actions or Proceedings; Chapter 131. Family Law; Shirley Meyer, J.D. and Harry C. Lee, J.D.; See also 750 ILCS 10/4.

Planning for the unexpected: Proper estate planning should be on your itinerary

Adding proper estate planning to your next vacation checklist can provide peace of mind knowing all your bases are covered - just in case.
Attorney Jennifer Guimond-Quigley in front of a beautiful courthouse in the Bahamas.

My husband and I recently traveled out of the country to the Bahamas for a much-needed spring break getaway.  This trip was vastly different than any we’ve taken as it was the first time we have left our toddler-age daughter behind.   In preparation for the trip, we did all the customary stuff – left contact information for the hotel we were staying, the number to her doctor’s office, her daily schedule, and what medications she takes and how much she may need.   For the first time we also prepared a short-term guardianship designation so that my parents would be able to have her treated for any medical issues that would arise while we were gone and left them with the information of where to locate our estate plan in the event something happened to us while we were away. As we flew overseas, I couldn’t help but think about Malaysian Airlines Flight 370 and the passengers who were on board.   Now that it appears the flight went missing over the Indian Ocean and will likely be found there, I can’t imagine the devastation that the families of those passengers are feeling, knowing that they will never see their loved ones again.  It also reminded me of how fragile life is and that any one of us could have been those passengers, never imagining that something so unthinkable could happen.  Until it does. The New York Daily News online had a feature that listed the passengers on board and a brief bio on each of them.   As I read through their names and the details about their lives and families, I couldn’t help but wonder whether they left behind an estate plan to guide their family through the administration of their estates.   Some may have felt they were too young to have a plan or were childless or not yet married and thus, may have believed it was not as important.   What happened is a tragic example that regardless of anyone’s place or stage in life, an estate plan is never premature or unimportant.   At a minimum, it will give a roadmap to a family’s loved ones as they go through estate administration at a time when they are likely still going through a long and painful grieving process.   At a maximum, it can save the estate money in the form of legal fees, taxes, and court costs and can ensure that the assets are maximized and are distributed to the intended beneficiaries, that appropriate and favored guardians are designated for minor children, and that money is set up in trust for children that will ensure their care far into adulthood. As the search continues for answers, my hope is that regardless of what is (or is not) found, the families are able to find peace somehow.  I hope that the rest of us can learn from this the importance of living each day to its fullest and having a well-thought out estate plan in place. by Jennifer Guimond-Quigley

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