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August 25, 2015 By Denver Family Lawyer

Do I Have to File for Divorce from a Common Law Marriage in Colorado?

Sometimes couples that are living together in Colorado hear about the concept of “common law marriage” and wonder if they might be considered married by the state of Colorado and also become concerned about whether they will have to file for divorce if they split up or move out. Since Colorado is one of 16 states that recognize “common law marriage” (see the prior blog post for the list of states and the requirements for a common law marriage to exist) that is a valid question.

If you have met the definition of common law marriage, then you are just as married as if you got a marriage license and went through a marriage ceremony. The question of whether you are common law married will usually be a question of fact for a family law judge to decide. The Colorado case of People v. Lucero, 747 P.2d 660 (Colo. 1987) sets out the standard a Judge will follow. To be common law married in Colorado, a couple must:
• Be over 18 years of age and legally be able to be married (not first cousins, not already married to someone else, etc.)
• Have agreed with each other that you are married now (not in the future)
• Cohabitate as husband and wife
• Hold themselves out to the public as husband and wife
• Take the last name of the other party

Common law marriage is not created just because you:
• Live with some, even if you have the intent to marry in the future
• Open a joint bank account or own property together
• File joint taxes

While these other items can be evidence of a common law marriage, they do not necessarily create one. The problems come when a couple who is living together but does not intend to be common law married does things that a married couple would do, like filing joint tax returns where they list themselves as spouses to the government and putting the other on health insurance policies where they list themselves a spouses to get better rates or to get coverage. These can all be evidence of the couple holding themselves out to the public in general and the government and insurance companies specifically as being married. It may become very difficult to argue in a later divorce proceeding that they are not common law married, especially with the specter of claims of “tax fraud” if they were not really common law married when they filed.

If there is a common law marriage there must be a divorce filed if the parties split up just like for any marriage. The problem is what if one of the parties did not want to be subject to a divorce proceeding? Obviously, one of the parties will have filed for divorce to take advantage of the distribution of property and alimony or support payments because of a disparity in income and property. The party who does not wish to considered common law married will be trying to protect his or her income and property from the other but may not be successful in arguing against the finding of a common law marriage because of some of these issues. There are ways to avoid this situation, like signing a Cohabitation Agreement prior to cohabitating. We will talk more about these types of agreements in the next blog post.

If you are concerned whether you may be considered to have a common law marriage or not and wish to discuss this with one of our experienced Colorado attorneys, feel free to give us a call for a referral. The initial consultation is always free. Give us a call at (720) 457-5959 or http://familylawattorneyindenver.com

Filed Under: Divorce Tagged With: alimony, cohabitation agreement, common law marriage, divorce

August 21, 2015 By Denver Family Lawyer

How Can I tell If I am (Common Law) Married or Not in Colorado?

Colorado is one of 16 states that recognize “common law marriage.” Those 16 states are:

• Alabama
• Colorado
• District of Columbia
• Georgia (created before 1997)
• Idaho (created before 1996)
• Iowa
• Kansas (both parties must be at least 18 years of age)
• Montana
• New Hampshire (only upon death)
• Ohio (created before 10/91)
• Oklahoma (created before 1998)
• Pennsylvania (created before 2005)
• Rhode Island
• South Carolina
• Texas (called an “informal marriage”)
• Utah (must be validated by court order)

So what constitutes a “common law marriage’? It requires that two people who legally have the right to be married (no siblings or first cousins, cannot be presently married to another person, etc.) desire to create a valid marital relationship without the benefit of a legal marriage ceremony as set out in Colorado statutes (C.R.S. 14-2-106). In other words, about all it takes is a mutual consent of the parties to be married and then an open assumption of the marriage relationship. (We will talk more about what “open assumptions” means below.)

It will be interesting to see how the Colorado courts adopt common law marriage now that same-sex marriage is legal. It should apply equally to same sex marriage as it does to heterosexual marriage, now that the “legality” issue has been removed.
What if you are living with someone and do not want to be “common law married”? How do you avoid it? Remember that in Colorado there is no statute creating common law marriage. It is a court created doctrine so you have to look at case law to see how it might be created. Also, case law can change at the whim of an appellate court, so this article deals with what it is now.

First, let’s discuss what does not create a common law marriage. An agreement to marry someone in the future does not create a common law marriage. It must be an agreement to be married now. Also, there is no set time that you have to have been living together to create a common law marriage. As long as you have agreed to be married, and hold yourselves out to others, you will be considered common law married. Finally, just living with someone in the same house is not enough to create a common law marriage. You also have to hold yourselves out as being married. Even having children together will not create a common law marriage by itself without the other requirements.

So, what does “holding yourself out” as married or an “open assumption of the marriage relationship” mean? Since there is usually no actual written contract to marry between people, it is sometimes difficult to prove whether a common law marriage has occurred or not. The courts look for evidence of cohabitation and “reputation” as husband and wife. The courts have determined that cohabitation and a reputation as a married couple will create an inference that the parties have consented to a marriage relationship.

In other words, all you have to do is cohabitate and claim to be married. This means holding yourselves out to others as being married. If your friends, neighbors and family members think you are married because you have told them you are married or done other things that would lead them to believe you are married, you will be considered common law married.

As in the dance, it takes two to tango in common law marriage. If one of the parties believes they are married and holds themselves out as married but the other does not and does not hold themselves out, there will not be a common law marriage because there is not a mutual agreement to be married. However, this could be a problem if the party that does not wish to be married has not done anything to protect his or her property and only asserts that there is no marriage after the other party has started a divorce proceeding and is asking for half of the others property and alimony or spousal maintenance. Prior to this happening, the party that does not want to be considered common law married should have done something to protect themselves. If you find yourselves in this situation, feel free to contact us for a referral to one of our experienced Colorado attorneys to help you.

There other facts that a court will look at to determine if a common law marriage exists. The woman using the last name of the man, the couple filing joint tax returns to take advantage of the marital deduction, opening joint bank accounts, purchasing real property together, mutual financial support, signing contracts together as husband and wife, even registering as husband and wife at hotels.

Why does it matter whether the State of Colorado will consider a couple “common law married” or not? Well, if the couple is not common law married, but are just cohabitating and they split up, it just like roommates moving out. Each keeps their own property and the other has no claim on them for support or for paying the others debts. If, on the other hand they are considered “common law married,” a marriage is a marriage is a marriage and all of the laws of marriage apply, including the dissolution of marriage statutes. There needs to be a divorce action filed and the courts will divide property and debts and may award support to one party.

Of course, whether you are “common law married” or not has no effect on child support if you have children together and split up. The Colorado Courts can enter child support awards to the parents whether they are married or not.

If you have any questions about whether you might be common law married or what the ramifications of that might be, feel free to contact us for a referral to one of our experienced Colorado attorneys for a free initial consultation. Give us a call at (720) 457-5959 or http://familylawattorneyindenver.com

Filed Under: Divorce Tagged With: child support, cohabitation agreement, common law marriage, dissolution of marriage

August 14, 2015 By Denver Family Lawyer

Do I Need to Hire a Lawyer if I am Injured in Colorado?

There are lots of ways you or a loved one could be injured in Colorado.  The most likely way is in a car accident.  However, there are on the job injuries, slipping and falling at a grocery store or being injured by the neighbor’s dog while visiting.  Regardless of how you are injured, the question becomes do you need to hire a lawyer when you get injured?  The answer is, that it depends (bet you did not see that one coming from a lawyer).

While this blog post, like all legal blogs, is intended solely for informational purposes and is not a source of legal advice and cannot be relied on for legal advice or representation (bet you did not see that disclaimer coming from a lawyer either), we can discuss generally when you might want to consider hiring a lawyer to help you with your injury claim.  Most people have their basic personal philosophy about whether they are willing to sue someone else or not.  If their philosophy is that they do not feel it is ever right to sue someone, that philosophy is usually malleable depending how serious the injury or the loss they have suffered is.

When the injury is trivial or minor, most people do not feel it is necessary or even right to sue over it.  However, when death or serious bodily injury are involved that have led to serious life changing events, most people would change their philosophy to seek just compensation.  That is also how most people decide whether to hire a lawyer to help them with their injury case.

Let’s discuss how hiring an attorney to help you with an injury claim might be beneficial.  First off, whether it is a car accident, a workman’s compensation injury, a case of elder abuse at a nursing home or even a dog bite, they all involve injuries that can leave you or your loved one traumatized and with a lot to deal with. Hiring a Colorado lawyer can help you by providing you with someone to talk to about a lot of legal technicalities you might not think about, like statute of limitations (time limits to bring suit), filing and negotiating insurance claims and even looking for other sources of insurance coverage you might not have thought about like uninsured or under insured motorist coverage or even homeowner policies. An attorney might even be able to help you deal with some of our medical treatment issues like getting bills paid or waived or held in abeyance while you seek compensation for your injuries or damages. It may just put another person on your team to help you through the process.

Since your lawyer is a member of your team you need to hire someone you can trust and rely on to provide you with the best legal representation possible.  Ask questions up front about their qualifications and experience so you feel comfortable about bringing them onto your team.  If you need to talk to an experienced Colorado personal injury attorney, give us a call and we can recommend some to you.

You might want to consider hiring an attorney if any of the following are involved:

  • You have serious injuries and large medical bills resulting from the accident.
  • Fault for the accident is shared or unclear.
  • The accident made existing injuries worse.
  • You’ve suffered non-economic losses such as pain and suffering or emotional trauma.
  • You’ve lost wages due to injuries stemming from the accident.

Obviously there are other reasons why you would want to hire an attorney. For example if there is an insurance company involved you will be dealing with an insurance adjuster who deals with cases like yours for a living and he or she is not in the business of paying you what your injuries are really worth, rather they are in the business of saving money for their employer to keep their job. If you are not experienced in dealing with insurance companies and their adjusters you would be well advised to get an attorney who is to help you.

Another reason to hire an attorney to help with your injury case is because there are lots of laws that apply to these kinds of cases and lots of rules and time limits, etc. An experienced Colorado personal injury lawyer will be able to help you avoid losing your right to seek adequate compensation for your injuries by missing a time limit or failing to file a claim, etc.

You may even need the help of a lawyer to evaluate whether you even have a valid claim or to help you determine who was actually at fault for the accident. Let’s take a car accident for instance. Fault isn’t always cut and dry when it comes to car accidents. For example, both drivers may actually be at fault. When this happens, Colorado law will determine how damages are apportioned between both drivers. An attorney can help you determine this and decide if you even have a case that is worth pursuing.

  • For instance, in Colorado, the modified comparative fault rule is used. This sounds complicated but here’s how it works:The damages an injured person is eligible to receive will be reduced by the percent of fault the jury imputes to that person. If you were hit but were found to be 10% at fault and the total damages were $100,000, you could receive $90,000.
  • However, if the injured person is found to be 50% at fault or more, they are NOT eligible to receive any compensation.

You may hear about this law if you are talking to an insurance adjuster about settling your claim. If you find yourself in this situation it is not too late to hire an attorney to help you. If you have been injured and think you are going to seek compensation for your injuries, we would be glad to help you find an experienced Colorado personal injury or workers compensation attorney to help you protect your rights. Give us a call at (720) 457-5959 or http://familylawattorneyindenver.com

 

 

Filed Under: Personal Injury Tagged With: colorado personal injury, colorado personal injury lawyer, comparative fault rule, hiring an attorney, insurance settlement, personal injury

July 16, 2015 By Denver Family Lawyer

Elder Abuse and Colorado’s New Mandatory Reporting Law

The Colorado Legislature recently passed Colorado Revised Statutes 18-6.5-108 which took effect July 1, 2014. Under this new law certain professionals must report abuse, caretaker neglect and exploitation of at-risk elders. According to the statute, an at-risk elder is any person 70 years of age and older.

In the United States the population is aging rapidly. According to the Alliance for Aging in 2012 the Baby Boomer generation began turning 65 at the rate of one every 10 seconds or nearly 10,000 people a day. It appears that this trend will continue for at least the next 20 years.

According to a legislative report dated November 30, 2012 (S.B. 12-078), Colorado’s population grew 17% from 2000 to 2010. The report estimates that the number of Coloradoans age 70 and over will increase 28% by the year 2017 and 142% by 2032. As a result of this massive increase in the elderly population the Colorado legislature passed the new mandatory reporting of abuse and exploitation of at-risk elder’s law.

Under the Colorado mandatory reporting of abuse and exploitation of at-risk elder’s law, the following are mandatory reporters if they observe the abuse or exploitation of at-risk elders or if they have reasonable cause to believe that abuse or exploitation has occurred:

  • Physicians, surgeons, physicians assistants, osteopaths, physicians in training, podiatrists, occupational therapists and physical therapists
  • Medical examiners and coroners
  • Registered nurses, licensed practical nurses and nurse practitioners
  • Emergency medical service providers
  • Hospital and long-term care facility personnel engaged in the admission, care or treatment of patients
  • Chiropractors
  • Psychologists and other mental health professionals
  • Social work practitioners
  • Clergy members (however there is an exception if the abuse became known through confidential communications in his or her capacity as a clergy member involving discipline by a religious body, see C.R.S. 13-90-109(1)(C))
  • Dentists
  • Law enforcement officials and personnel
  • Court-appointed guardians and conservators
  • Fire-protection personnel
  • Pharmacists
  • Community-centered board staff
  • Personnel of banks, savings and loan associations, credit unions and other lending or financial institutions (however on July 1, 2016 this will change to require reporting only if the bank or other financial services personnel directly observe the abuse or exploitation)
  • Caretaker, staff member, employee, or consultant for a licensed or certified care facility, agency, home or governing board, including home health providers
  • Caretaker, staff member, employee of or a consultant for a home care placement agency

These mandatory reporters must report the suspected abuse or exploitation to a law enforcement agency not more than 24 hours after making the observation or discovery of the abuse or exploitation.

What forms can this abuse or exploitation take? It can be physical abuse such as when someone causes bodily harm to an at-risk elder by causing physical pain or bruising. It can be unreasonable confinement or restraint of the at-risk elder. It can also be emotional abuse.

Some of the indicators of Physical abuse are: 1) repeated visits to the emergency room; 2) bruises or injuries in various stages of healing; 3) unconvincing explanations of injuries; 4) isolating the at-risk elder from family and medical care.

Some examples of physical abuse of at-risk elders are: 1) a caretaker handling roughly the at-risk elder and causing pain; 2) leaving a non-ambulatory at-risk elder alone for long periods of time; 3) claiming to restrain an at-risk elder for “safety reasons” by restraining in a wheel chair or elsewhere using a rope of other material for long periods of time; 4) someone hitting, pushing or slapping an at-risk elder.

Another form of abuse of at-risk elders is sexual abuse. Sexual abuse means subjecting an at-risk elder to unlawful sexual conduct or contact. Some of the physical signs of sexual abuse of at-risk elders is: 1) difficulty in walking, sitting or standing; 2) torn, stained or bloody underclothing; 3) bruises, pain, bleeding or injuries to the genitals, breasts or anal area; 4) sexually transmitted diseases.

Some of the behavioral signs of at-risk elder sexual abuse are: 1) scared or timid behavior; 2) depressed or withdrawn behavior; 3) sudden changes in personality; 4) sudden avoidance or fear of other people; 5) doesn’t want to be touched; 6) resistance to certain caregiving tasks.

Caretaker neglect is one of most prevalent forms of at-risk elder abuse. This can occur when the at-risk elder’s caretaker fails to make sure the elderly person has adequate food, clothing, shelter, psychological care, physical care, medical care or supervision. Caretaker neglect can also occur when the caretaker does not provide these things in a timely manner or with the same degree of care that a reasonable person in the same situation would use. If you suspect caretaker abuse or any other forms of elder abuse or exploitation you should not only report it to law enforcement, but you should contact an experienced Colorado attorney to discuss your rights and the rights of the abused elder.

“Caretakers” are not just those paid to provide care for an at-risk elder. It can also include those who have assumed the responsibility for the care, with or without pay, or who have identified themselves as the caregiver. It can be a family member, home health provider, facility staff or a neighbor who has agreed to provide recurring assistance to help the elder meet basic needs. However, occasional shopping or cleaning for an at-risk elder does not mean that a “Good Samaritan” has assumed responsibility for the at-risk elder’s care.

Some of the signs of caretaker neglect are: 1) unusual weight loss, malnutrition or dehydration; 2) untreated physical problems, such as bed sores; 3) unsanitary living conditions, including dirt, bugs, soiled bedding, etc.; 4) being left in dirty, soiled clothing; 5) unsafe living conditions such as no heat or running water, faulty electrical wiring or other fire hazards; 6) being left alone when unable to self-care or protect themselves; 7) failure to provide food or water; 8) improper use of medications in order to “control” the at-risk adult; 9) lack of medical aids such as glasses, walkers or canes, teeth or dentures, hearing aids or medications when needed.

Some characteristics of the “abuser” that should be looked for are: 1) not allowing the at-risk elder to talk to others and isolation; 2) the abuser expresses unrealistic expectations of the elder (should be able to…); 3) previous history of abuse of others; 4) expresses anger and frustration with the elder; 5) blames the elder (e.g., accusation that incontinence is a deliberate act, etc.); 6) relates contradictory history when talking about the at-risk elder; 7) reacts inappropriately in situations with the at-risk elder; 8) aggressive behavior such as threats, insults or harassment.

It must be remembered that not all situations are caregiver neglect. At-risk elders do have the right to direct their own health care services. Elders do have the right to create “advance directives” or have their physician write orders about medication, medical procedures and devices; hospice care, living wills, do-not resuscitate orders; dialysis and artificial nutrition and hydration. These are not considered caretaker neglect.

At-risk elder exploitation means taking an at-risk elder’s money or other assets against their will or without their knowledge. It also means deceiving, harassing, intimidating or using undue influence to get the elder to do something against their will. This can include Guardians or Conservators using the elders assets for their own personal use; family members accessing the elders money or accounts to purchase items for themselves without permission; threatening to put the elder in a nursing home if he or she does not give the person money, etc.

Some of the signs of at-risk elder exploitation are: 1) personal belongings missing; 2) deviations in financial habits; 3) numerous unpaid bills when the means to pay them are available; 4) disparity between lifestyle and assets; 5) checks made out to cash, etc.

Abusers, neglecters and exploiters of at-risk elders are often family members, someone the elder knows and trusts or a caregiver. However, it can be anyone from neighbors, home care staff, a handyman, clergy, family, friends, hired help or anyone who has contact with the elder.

If at-risk elder abuse, neglect or exploitation is suspected it should be reported to law enforcement as soon as possible and you should contact an experienced Colorado lawyer to see about protecting the elder’s rights. If you are in the list of mandatory reporters set out above, you must report to law enforcement within 24 hours of discovery or suspicion. You need to report the name and address of the at-risk elder; a description of the alleged mistreatment or nature and extent of injury; the name and address of the alleged perpetrator if you have it and any other information you feel is relevant.

It is O.K. to report even if you just suspect something is wrong. As long as you are a mandatory reporter and you make the report in good faith you will be immune from criminal charges and civil lawsuits under the mandatory reporting statute. However, if you are the abuser you will not be immune.

Anyone who knowingly makes a false report or willfully fails to make a report of abuse or exploitation of an at-risk elder is guilty of a class 3 misdemeanor. If charged and convicted they could receive a fine of $750 or six months in jail or both.

After a report is made, law enforcement will share the report with Adult Protective Services within 24 hours. They will also notify the District Attorney’s office. Law enforcement or Adult Protective Services may investigate and a report will be provided to the D.A. who will decide of criminal charges are filed.
If you are a mandatory reporter and you suspect at-risk elder abuse or exploitation you should contact your local law enforcement agency or County Department of Human/Social Services within 24 hours of discovery.

If you suspect that your loved one has been the victim of elder abuse you should discuss the situation with an experienced Colorado attorney. Our attorneys provide a free initial consultation to help you evaluate your situation. If you or a loved one was seriously injured due to the abuse, neglect, or exploitation of another, you may be entitled to significant compensation for any medical bills and emotional distress.

Please feel free to contact us for a referral to an experienced Colorado attorney by calling (720) 457-5959 or http://familylawattorneyindenver.com

Filed Under: Elder Abuse Tagged With: colorado elder abuse, elder abuse, elder abuse attorney

June 27, 2015 By Denver Family Lawyer

What should I do after I have been injured in an Accident?

First off you should take care of your injuries immediately by seeking competent medical treatment. Next, it is important that you contact an experienced Colorado attorney as soon after your injury as you can. If you think you have a claim against someone else for your personal injuries you need the help and advice of an experienced attorney to help you so that you do not lose your right to seek compensation.

You should also document as much as you can about the accident and your injuries. If you can take pictures of the accident site and vehicles, etc. as well as taking pictures of your injuries it will be helpful later in your case. Also, keep all of the receipts, invoices or other documents relating to your injuries or losses. Get names and addresses and phone numbers of witnesses as well as information about all of your medical treatments. If you have any other damages or losses, document those also.

If the other party has insurance that might cover the accident or your injuries or losses you should make a claim with that insurance company as soon as possible. Also, if you have your own insurance policy that might cover any of your injuries (like an uninsured motorist or under-insured motorist coverage in your own policy) you should put your own insurance company on notice and open a claim with them also.

You should be careful about giving a written or verbal statement to anyone other than the police at the scene of the accident. You would be better off to contact an experienced Colorado attorney before giving any other statements, even to your own insurance company. Remember the old warning, “anything you say can and will be used against you in a court of law.”
Finally, never sign any release or waiver of liability before talking to an attorney. Without the assistance of competent legal counsel there is no way for you to evaluate how much your case is worth in settlement or after trial. If you sign a release or waiver, you will not be able to go back later and bring a claim, so be careful what you sign, even if it is from you own insurance company.

Remember, you only have a limited amount of time to file your personal injury claim in Colorado. The statute of limitations dictates how long you have to file the claim with the court after you are injured. In some cases, the statute of limitations starts when the person becomes aware of the injury or should have become aware of the injury (the Discovery Rule). Colorado statute of limitations laws may differ from those of other states.

Colorado Statute of Limitations Laws:

Type of Claim: – Statute of Limitation:
Negligence (car accidents, slip and fall, toxic torts, etc.) – 2 years (3 years if w/motor vehicle)
Assault or Battery – 1 year
Defamation – 1 year
Strict Liability – 2 years
Products Liability – 2 years
Wrongful Death – 2 years

Not everything that you think you have been damaged by is compensable. You can recover for reimbursement for medical treatment and lost wages. However, if someone else has paid these on your behalf (like a health insurance company or a governmental entity) the person or entity that paid them has the right to be reimbursed from any settlement of jury award. You can recover for damage to or loss of use of your property. You can be compensated for your pain and suffering caused by the accident, including for emotional distress. You can even recover for loss of consortium which is the loss of services of your spouse (income, companionship, child care, etc.). In some very serious cases you might be able to recover for punitive damages. That is money that is given to punish the other party for egregious behavior.

Generally, in Colorado there are no limitations on damages the jury can award you that are to compensate you for your damages or injuries such as reimbursement for medical expenses and lost wages. However, some limitations do exist in certain situations and you should consult with an experienced Colorado attorney to help you evaluate your case. You can even recover for certain damages that are projected to occur in the future, such as future medical expenses or future lost wages. These future damages must be reasonably certain and must usually be based on expert testimony.

There are two types of damages in a personal injury case in Colorado, economic damages and non-economic damages. Non-economic damages are those damages that are not based on money you actually paid. They are more subjective, like pain and suffering, and may be limited by Colorado statutes or by the individual circumstances of your case. These damages may include pain and suffering, emotional distress and loss of consortium. Colorado limits non-economic damages to $250,000 except for in extreme circumstances.

Economic damages are those damages that can be calculated, like medical expenses and car repair bills. Punitive damages may be awarded when the behavior of the person that injured the victim was malicious, fraudulent, or willful. In Colorado, punitive damages cannot be greater than the amount of actual damages awarded. There may be some exceptions to these limits.

There are numerous ways you can lose your right to seek recovery for your injuries and there are also restrictions on the amount you can recover. If you have been injured and think you are going to seek compensation for your injuries, we would be glad to help you find an experienced Colorado personal injury or workers compensation attorney to help you protect your rights. Give us a call at 97200 457-5959 or http://familylawattorneyindenver.com

Filed Under: Personal Injury Tagged With: colorado personal injury

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The Kay Law Firm, LLC is a full-service law firm providing you or your small business with superb legal services.

Gregg E. Kay has been an attorney in Colorado for over 33 years. He has extensive experience as General counsel for a local Mortgage Bank, private practice and 13 years in the Colorado Attorney General’s office.

The Kay Law Firm, LLC


8123 S Interport Blvd, Suite A
Englewood, CO 80112

Gregg Kay

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