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Divorce Law
§ 93-5-1. Causes for divorce.
Divorces from the bonds of matrimony may be decreed to the injured party for
any one or more of the following twelve causes, viz:
First. Natural impotency.
Second. Adultery, unless it should appear that it was committed by collusion
of the parties for the purpose of procuring a divorce, or unless the parties
cohabited after a knowledge by complainant of the adultery.
Third. Being sentenced to any penitentiary, and not pardoned before being
sent there.
Fourth. Wilful, continued and obstinate desertion for the space of one year.
Fifth. Habitual drunkenness.
Sixth. Habitual and excessive use of opium, morphine or other like drug.
Seventh. Habitual cruel and inhuman treatment.
Eighth. Insanity or idiocy at the time of marriage, if the party complaining
did not know of such infirmity.
Ninth. Marriage to some other person at the time of the pretended marriage
between the parties.
Tenth. Pregnancy of the wife by another person at the time of the marriage,
if the husband did not know of such pregnancy.
Eleventh. Either party may have a divorce if they be related to each other
within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable insanity. But no divorce shall be granted upon this
ground unless the insane party shall have been under regular treatment for
insanity and causes thereof, confined in an institution for the insane for a
period of at least three years immediately preceding the commencement of the
action. Provided, however, that transfer of an insane party to his or her
home for treatment or a trial visit on prescription or recommendation of a
licensed physician, which treatment or trial visit proves unsuccessful after
a bona fide effort by the complaining party to effect a cure, upon the
reconfinement of the insane party in an institution for the insane, shall be
regular treatment for insanity and causes thereof, and the period of time so
consumed in seeking to effect a cure, or while on a trial visit home, shall
be added to the period of actual confinement in an institution for the
insane in computing the required period of three (3) years confinement
immediately preceding the commencement of the action. No divorce shall be
granted because of insanity until after a thorough examination of such
insane person by two (2) physicians who are recognized authorities on mental
diseases. One such physician shall be either the superintendent of the state
hospital or the veterans hospital for the insane in which the patient is
confined, or a member of the medical staff of such hospital who has had the
patient in charge. Before incurable insanity can be successfully proven as a
ground for divorce, it shall be necessary that both such physicians make
affidavit that such patient is a mentally disturbed person at the time of
the examination and both affidavits shall be made a part of the permanent
record of the divorce proceedings and shall create the prima facie
presumption of incurable insanity, such as would justify a divorce based
thereon. Service of process shall be made on the superintendent of the
hospital in which the defendant is a patient. In event the patient is in a
hospital outside the state, process shall be served by publication, as in
other cases of service by publication, together with the sending of a copy
by registered mail to the superintendent of said hospital. In addition
thereto, process shall be served upon the next blood relative and guardian,
if any. In event there is no legal guardian, the court shall appoint a
guardian ad litem to represent the interest of the insane person. Such
relative or guardian and superintendent of the institution shall be entitled
to appear and be heard upon any and all issues. The status of the parties as
to the support and maintenance of the insane person shall not be altered in
any way by the granting of the divorce.
However, in the discretion of the chancery court, and in such cases as the
court may deem it necessary and proper, before any such decree is granted on
the ground of incurable insanity, the complainant, when ordered by the
court, shall enter into bond, to be approved by the court, in such an amount
as the court may think just and proper, conditioned for the care and keeping
of such insane person during the remainder of his or her natural life,
unless such insane person has a sufficient estate in his or her own right
for such purpose.
Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (3, 4, 6), art. 6 (1);
1857, ch. 40, arts. 11, 12, 13, 15; 1871, §§ 1767, 1768, 1770; 1880, §§
1155, 1156, 1157; 1892, § 1562; Laws, 1906, § 1669; Hemingway's 1917, §
1411; Laws, 1930, § 1414; Laws, 1942, § 2735; Laws, 1932, ch. 275; Laws,
1938, ch. 264; Laws, 1956, ch. 248.
§ 93-5-2. Divorce on grounds of irreconcilable differences.
(1) Divorce from the bonds of matrimony may be granted on the ground of
irreconcilable differences, but only upon the joint complaint of the husband
and wife or a complaint where the defendant has been personally served with
process or where the defendant has entered an appearance by written waiver
of process.
(2) If the parties provide by written agreement for the custody and
maintenance of any children of that marriage and for the settlement of any
property rights between the parties and the court finds that such provisions
are adequate and sufficient, the agreement may be incorporated in the
judgment, and such judgment may be modified as other judgments for divorce.
(3) If the parties are unable to agree upon adequate and sufficient
provisions for the custody and maintenance of any children of that marriage
or any property rights between them, they may consent to a divorce on the
ground of irreconcilable differences and permit the court to decide the
issues upon which they cannot agree. Such consent must be in writing, signed
by both parties personally, must state that the parties voluntarily consent
to permit the court to decide such issues, which shall be specifically set
forth in such consent, and that the parties understand that the decision of
the court shall be a binding and lawful judgment. Such consent may not be
withdrawn by a party without leave of the court after the court has
commenced any proceeding, including the hearing of any motion or other
matter pertaining thereto. The failure or refusal of either party to agree
as to adequate and sufficient provisions for the custody and maintenance of
any children of that marriage or any property rights between the parties, or
any portion of such issues, or the failure or refusal of any party to
consent to permit the court to decide such issues, shall not be used as
evidence, or in any manner, against such party. No divorce shall be granted
pursuant to this subsection until all matters involving custody and
maintenance of any child of that marriage and property rights between the
parties raised by the pleadings have been either adjudicated by the court or
agreed upon by the parties and found to be adequate and sufficient by the
court and included in the judgment of divorce. Appeals from any orders and
judgments rendered pursuant to this subsection may be had as in other cases
in chancery court only insofar as such orders and judgments relate to issues
that the parties consented to have decided by the court.
(4) Complaints for divorce on the ground of irreconcilable differences must
have been on file for sixty (60) days before being heard. Except as
otherwise provided in subsection (3) of this section, a joint complaint of
husband and wife or a complaint where the defendant has been personally
served with process or where the defendant has entered an appearance by
written waiver of process, for divorce solely on the ground of
irreconcilable differences, shall be taken as proved and a final judgment
entered thereon, as in other cases and without proof or testimony in
termtime or vacation, the provisions of Section 93-5-17 to the contrary
notwithstanding.
(5) Except as otherwise provided in subsection (3) of this section, no
divorce shall be granted on the ground of irreconcilable differences where
there has been a contest or denial; provided, however, that a divorce may be
granted on the grounds of irreconcilable differences where there has been a
contest or denial, if the contest or denial has been withdrawn or cancelled
by the party filing same by leave and order of the court.
(6) Irreconcilable differences may be asserted as a sole ground for divorce
or as an alternate ground for divorce with any other cause for divorce set
out in Section 93-5-1.
Sources: Laws, 1976, ch. 451, § 1; Laws, 1978, ch. 367, § 1; Laws, 1990, ch.
584, § 1, eff from and after passage (approved April 9, 1990).
§ 93-5-5. Residence requirements for divorce.
The jurisdiction of the chancery court in suits for divorce shall be
confined to the following cases:
(a) Where one (1) of the parties has been an actual bona fide resident
within this state for six (6) months next preceding the commencement of the
suit. If a member of the armed services of the United States is stationed in
the state and residing within the state with his spouse, such person and his
spouse shall be considered actual bona fide residents of the state for the
purposes of this section, provided they were residing within the state at
the time of the separation of the parties.
(b) In any case where the proof shows that a residence was acquired in this
state with a purpose of securing a divorce, the court shall not take
jurisdiction thereof, but dismiss the bill at the cost of complainant.
Sources: Codes, 1892, § 1567; Laws, 1906, § 1675; Hemingway's 1917, § 1417;
Laws, 1930, § 1415; Laws, 1942, § 2736; Laws, 1966, ch. 362, § 1; Laws,
1977, ch. 311, eff from and after July 1, 1977.
§ 93-5-11. Filing of complaints; transfer of venue.
All complaints, except those based solely on the ground of irreconcilable
differences, must be filed in the county in which the plaintiff resides, if
the defendant be a nonresident of this state, or be absent, so that process
cannot be served; and the manner of making such parties defendants so as to
authorize a judgment against them in other chancery cases, shall be
observed. If the defendant be a resident of this state, the complaint shall
be filed in the county in which such defendant resides or may be found at
the time, or in the county of the residence of the parties at the time of
separation, if the plaintiff be still a resident of such county when the
suit is instituted.
A complaint for divorce based solely on the grounds of irreconcilable
differences shall be filed in the county of residence of either party where
both parties are residents of this state. If one (1) party is not a resident
of this state, then the complaint shall be filed in the county where the
resident party resides.
Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules
of Civil Procedure.
Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (10); 1857, ch. 40, art.
21; 1871, § 1776; 1880, § 1164; 1892, § 1569; Laws, 1906, § 1677;
Hemingway's 1917, § 1419; Laws, 1930, § 1417; Laws, 1942, § 2738; Laws,
1978, ch. 368, § 1; Laws, 1991, ch. 573, § 131; Laws, 2005, ch. 448, § 1,
eff from and after July 1, 2005.
...For further information, please refer to the Mississippi Code
What
are the Grounds for Divorce in Mississippi?
Mississippi
Causes for Divorce
Filing of
Complaints
Marriage and
Living Together Law
Mississippi Marriage License
Information
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Child
Support
SEC. 43-19-101. Child support award
guidelines.
(1) The following child support award guidelines shall be a rebuttable
presumption in all judicial or administrative proceedings regarding the
awarding or modifying of child support awards in this state:
Number Of Children Percentage Of Adjusted Gross Income
Due Support That Should Be Awarded For Support
1 - 14%
2 - 20%
3 - 22%
4 - 24%
5 or more - 26%
(2) The guidelines provided
for in subsection (1) of this section apply unless the judicial or
administrative body awarding or modifying the child support award makes a
written finding or specific finding on the record that the application of
the guidelines would be unjust or inappropriate in a particular case as
determined under the criteria specified in Section 43-19-103.
(3) The amount of "adjusted gross income" as that term is used in subsection
(1) of this section shall be calculated as follows:
(a) Determine gross income from all potential sources that may reasonably be
expected to be available to the absent parent including, but not limited to,
the following: wages and salary income; income from self employment; income
from commissions; income from investments, including dividends, interest
income and income on any trust account or property; absent parent's portion
of any joint income of both parents; workers' compensation, disability,
unemployment, annuity and retirement benefits, including an individual
retirement account (IRA); any other payments made by any person, private
entity, federal or state government or any unit of local government;
alimony; any income earned from an interest in or from inherited property;
any other form of earned income; and gross income shall exclude any monetary
benefits derived from a second household, such as income of the absent
parent's current spouse;
(b) Subtract the following legally mandated deductions:
(i) Federal, state and local taxes. Contributions to the payment of taxes
over and beyond the actual liability for the taxable year shall not be
considered a mandatory deduction;
(ii) Social security contributions;
(iii) Retirement and disability contributions except any voluntary
retirement and disability contributions;
(c) If the absent parent is subject to an existing court order for another
child or children, subtract the amount of that court-ordered support;
(d) If the absent parent is also the parent of another child or other
children residing with him, then the court may subtract an amount that it
deems appropriate to account for the needs of said child or children;
(e) Compute the total annual amount of adjusted gross income based on
paragraphs (a) through (d), then divide this amount by twelve (12) to obtain
the monthly amount of adjusted gross income.
Upon conclusion of the calculation of paragraphs (a) through (e), multiply
the monthly amount of adjusted gross income by the appropriate percentage
designated in subsection (1) to arrive at the amount of the monthly child
support award.
(4) In cases in which the adjusted gross income as defined in this section
is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand
Dollars ($5,000.00), the court shall make a written finding in the record as
to whether or not the application of the guidelines established in this
section is reasonable.
(5) The Department of Human Services shall review the appropriateness of
these guidelines beginning January 1, 1994, and every four (4) years
thereafter and report its findings to the Legislature no later than the
first day of the regular legislative session of that year. The Legislature
shall thereafter amend these guidelines when it finds that amendment is
necessary to ensure that equitable support is being awarded in all cases
involving the support of minor children.
(6) All orders involving support of minor children, as a matter of law,
shall include reasonable medical support. Notice to the noncustodial
parent's employer that medical support has been ordered shall be on a form
as prescribed by the Department of Human Services.
SOURCES: Laws, 1989, ch. 439,
Sec. 1; 1990, ch. 543, Sec. 2, eff from and after passage (approved April 4,
1990). Amended by Laws 2000, Ch. 530, Sec. 3, SB2840, eff. July 1, 2000.
...For further information, please refer to the Mississippi Code
MS Child
Support Guidelines
Child
Support: What Every Mother and Father Should Know
MS Division of Child
Support Enforcement
Child
Support Explained
Child Custody
and Visitation Law
§ 93-5-23. Custody of children; alimony.
When a divorce shall be decreed from the bonds of matrimony, the court may,
in its discretion, having regard to the circumstances of the parties and the
nature of the case, as may seem equitable and just, make all orders touching
the care, custody and maintenance of the children of the marriage, and also
touching the maintenance and alimony of the wife or the husband, or any
allowance to be made to her or him, and shall, if need be, require bond,
sureties or other guarantee for the payment of the sum so allowed. Orders
touching on the custody of the children of the marriage shall be made in
accordance with the provisions of Section 93-5-24. The court may afterwards,
on petition, change the decree, and make from time to time such new decrees
as the case may require. However, where proof shows that both parents have
separate incomes or estates, the court may require that each parent
contribute to the support and maintenance of the children of the marriage in
proportion to the relative financial ability of each. In the event a legally
responsible parent has health insurance available to him or her through an
employer or organization that may extend benefits to the dependents of such
parent, any order of support issued against such parent may require him or
her to exercise the option of additional coverage in favor of such children
as he or she is legally responsible to support.
Whenever the court has ordered a party to make periodic payments for the
maintenance or support of a child, but no bond, sureties or other guarantee
has been required to secure such payments, and whenever such payments as
have become due remain unpaid for a period of at least thirty (30) days, the
court may, upon petition of the person to whom such payments are owing, or
such person's legal representative, enter an order requiring that bond,
sureties or other security be given by the person obligated to make such
payments, the amount and sufficiency of which shall be approved by the
court. The obligor shall, as in other civil actions, be served with process
and shall be entitled to a hearing in such case.
Whenever in any proceeding in the chancery court concerning the custody of a
child a party alleges that the child whose custody is at issue has been the
victim of sexual or physical abuse by the other party, the court may, on its
own motion, grant a continuance in the custody proceeding only until such
allegation has been investigated by the Department of Human Services. At the
time of ordering such continuance the court may direct the party, and his
attorney, making such allegation of child abuse to report in writing and
provide all evidence touching on the allegation of abuse to the Department
of Human Services. The Department of Human Services shall investigate such
allegation and take such action as it deems appropriate and as provided in
such cases under the Youth Court Law (being Chapter 21 of Title 43,
Mississippi Code of 1972) or under the laws establishing family courts
(being Chapter 23 of Title 43, Mississippi Code of 1972).
If after investigation by the Department of Human Services or final
disposition by the youth court or family court allegations of child abuse
are found to be without foundation, the chancery court shall order the
alleging party to pay all court costs and reasonable attorney's fees
incurred by the defending party in responding to such allegation.
The court may investigate, hear and make a determination in a custody action
when a charge of abuse and/or neglect arises in the course of a custody
action as provided in Section 43-21-151, and in such cases the court shall
appoint a guardian ad litem for the child as provided under Section
43-21-121, who shall be an attorney. Unless the chancery court's
jurisdiction has been terminated, all disposition orders in such cases for
placement with the Department of Human Services shall be reviewed by the
court or designated authority at least annually to determine if continued
placement with the department is in the best interest of the child or
public.
The duty of support of a child terminates upon the emancipation of the
child. The court may determine that emancipation has occurred and no other
support obligation exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time
employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and
establishes independent living arrangements and obtains full-time employment
prior to attaining the age of twenty-one (21) years.
Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (7); 1857, ch. 40, art.
17; 1871, § 1772; 1880, § 1159; 1892, § 1565; Laws, 1906, § 1673;
Hemingway's 1917, § 1415; Laws, 1930, § 1421; Laws, 1942, § 2743; Laws,
1954, ch. 228; Laws, 1979, ch. 497; Laws, 1983, ch. 513, § 3; Laws, 1985, ch.
518, § 15; Laws, 1989, ch. 434, § 1; Laws, 1993, ch. 558, § 2; Laws, 1994,
ch. 591, § 6; Laws, 1996, ch. 345, § 1; Laws, 2000, ch. 453, § 2, eff from
and after July 1, 2000.
§ 93-5-24. Types of custody awarded by court; joint custody; no
presumption in favor of maternal custody; access to information pertaining
to child by noncustodial parent; restrictions on custody by parent with
history of perpetrating family violence; rebuttable presumption that such
custody is not in the best interest of the child; factors in reaching
determinations; visitation orders.
(1) Custody shall be awarded as follows according to the best
interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to
subsections (2) through (7).
(b) Physical custody to both parents jointly pursuant to subsections (2)
through (7) and legal custody to either parent.
(c) Legal custody to both parents jointly pursuant to subsections (2)
through (7) and physical custody to either parent.
(d) Physical and legal custody to either parent.
(e) Upon a finding by the court that both of the parents of the child have
abandoned or deserted such child or that both such parents are mentally,
morally or otherwise unfit to rear and train the child the court may award
physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and
stable environment; or
(ii) Physical and legal custody to any other person deemed by the court to
be suitable and able to provide adequate and proper care and guidance for
the child.
In making an order for custody to either parent or to both parents jointly,
the court, in its discretion, may require the parents to submit to the court
a plan for the implementation of the custody order.
(2) Joint custody may be awarded where irreconcilable differences is the
ground for divorce, in the discretion of the court, upon application of both
parents.
(3) In other cases, joint custody may be awarded, in the discretion of the
court, upon application of one or both parents.
(4) There shall be a presumption that joint custody is in the best interest
of a minor child where both parents have agreed to an award of joint
custody.
(5) (a) For the purposes of this section, "joint custody" means joint
physical and legal custody.
(b) For the purposes of this section, "physical custody" means those periods
of time in which a child resides with or is under the care and supervision
of one (1) of the parents.
(c) For the purposes of this section, "joint physical custody" means that
each of the parents shall have significant periods of physical custody.
Joint physical custody shall be shared by the parents in such a way so as to
assure a child of frequent and continuing contact with both parents.
(d) For the purposes of this section, "legal custody" means the
decision-making rights, the responsibilities and the authority relating to
the health, education and welfare of a child.
(e) For the purposes of this section, "joint legal custody" means that the
parents or parties share the decision-making rights, the responsibilities
and the authority relating to the health, education and welfare of a child.
An award of joint legal custody obligates the parties to exchange
information concerning the health, education and welfare of the minor child,
and to confer with one another in the exercise of decision-making rights,
responsibilities and authority.
An award of joint physical and legal custody obligates the parties to
exchange information concerning the health, education and welfare of the
minor child, and unless allocated, apportioned or decreed, the parents or
parties shall confer with one another in the exercise of decision-making
rights, responsibilities and authority.
(6) Any order for joint custody may be modified or terminated upon the
petition of both parents or upon the petition of one (1) parent showing that
a material change in circumstances has occurred.
(7) There shall be no presumption that it is in the best interest of a child
that a mother be awarded either legal or physical custody.
(8) Notwithstanding any other provision of law, access to records and
information pertaining to a minor child, including, but not limited to,
medical, dental and school records, shall not be denied to a parent because
the parent is not the child's custodial parent.
(9) (a) (i) In every proceeding where the custody of a child is in dispute,
there shall be a rebuttable presumption that it is detrimental to the child
and not in the best interest of the child to be placed in sole custody,
joint legal custody or joint physical custody of a parent who has a history
of perpetrating family violence. The court may find a history of
perpetrating family violence if the court finds, by a preponderance of the
evidence, one (1) incident of family violence that has resulted in serious
bodily injury to, or a pattern of family violence against, the party making
the allegation or a family household member of either party. The court shall
make written findings to document how and why the presumption was or was not
triggered.
(ii) This presumption may only be rebutted by a preponderance of the
evidence.
(iii) In determining whether the presumption set forth in subsection (9) has
been overcome, the court shall consider all of the following factors:
1. Whether the perpetrator of family violence has demonstrated that giving
sole or joint physical or legal custody of a child to the perpetrator is in
the best interest of the child because of the other parent's absence, mental
illness, substance abuse or such other circumstances which affect the best
interest of the child or children;
2. Whether the perpetrator has successfully completed a batterer's treatment
program;
3. Whether the perpetrator has successfully completed a program of alcohol
or drug abuse counseling if the court determines that counseling is
appropriate;
4. Whether the perpetrator has successfully completed a parenting class if
the court determines the class to be appropriate;
5. If the perpetrator is on probation or parole, whether he or she is
restrained by a protective order granted after a hearing, and whether he or
she has complied with its terms and conditions; and
6. Whether the perpetrator of domestic violence has committed any further
acts of domestic violence.
(iv) The court shall make written findings to document how and why the
presumption was or was not rebutted.
(b) (i) If custody is awarded to a suitable third person, it shall not be
until the natural grandparents of the child have been excluded and such
person shall not allow access to a violent parent except as ordered by the
court.
(ii) If the court finds that both parents have a history of perpetrating
family violence, but the court finds that parental custody would be in the
best interest of the child, custody may be awarded solely to the parent less
likely to continue to perpetrate family violence. In such a case, the court
may mandate completion of a treatment program by the custodial parent.
(c) If the court finds that the allegations of domestic violence are
completely unfounded, the chancery court shall order the alleging party to
pay all court costs and reasonable attorney's fees incurred by the defending
party in responding to such allegations.
(d) (i) A court may award visitation by a parent who committed domestic or
family violence only if the court finds that adequate provision for the
safety of the child and the parent who is a victim of domestic or family
violence can be made.
(ii) In a visitation order, a court may take any of the following actions:
1. Order an exchange of the child to occur in a protected setting;
2. Order visitation supervised in a manner to be determined by the court;
3. Order the perpetrator of domestic or family violence to attend and
complete to the satisfaction of the court a program of intervention for
perpetrators or other designated counseling as a condition of visitation;
4. Order the perpetrator of domestic or family violence to abstain from
possession or consumption of alcohol or controlled substances during the
visitation and for twenty-four (24) hours preceding the visitation;
5. Order the perpetrator of domestic or family violence to pay a fee to
defray the cost of supervised visitation;
6. Prohibit overnight visitation;
7. Require a bond from the perpetrator of domestic or family violence for
the return and safety of the child; or
8. Impose any other condition that is deemed necessary to provide for the
safety of the child, the victim of family or domestic violence, or other
family or household member.
(iii) Whether or not visitation is allowed, the court may order the address
of the child or the victim of family or domestic violence to be kept
confidential.
(e) The court may refer but shall not order an adult who is a victim of
family or domestic violence to attend counseling relating to the victim's
status or behavior as a victim, individually or with the perpetrator of
domestic or family violence, as a condition of receiving custody of a child
or as a condition of visitation.
(f) If a court allows a family or household member to supervise visitation,
the court shall establish conditions to be followed during visitation.
Sources: Laws, 1983, ch. 513, §§ 1, 2; Laws, 2000, ch. 453, § 1; Laws, 2003,
ch. 475, § 1, eff from and after July 1, 2003.
...For further information, please refer to the Mississippi Code
Child
Custody: Considering the Best Interest Of...
MS Types of
Custody
MS Access and Visitation
Program (MAV-P)
FAQ on Child
Custody and Visitation
Child Custody
Resources
Property Division
There are no statutory factors in Mississippi, which means that the division
of property is up to the judge. Jointly titled property will be divided
equally by the court. Separately titled property will be awarded to the
person in whose name the property is titled.
...For further information, please refer to the Mississippi Code
Division of
Property in MS - by DivorceNet
Credit and
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