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Child Support

The Infamous Pataky Case

Pataky vs PatakyI was observing a hearing several days ago and the Judge started discussing Pataky v. Pataky. I could see that at least one of the attorneys in the hearing was unfamiliar with the case from the look on their face. Then it struck me to look it up on the internet to see what I could find on the case. Astonishingly, I ran across several websites where people (attorneys and non-attorneys) were stating that it was mentioned in their hearings and they had no idea what the case was about. I will admit, I have heard of the Pataky case (since I am an attorney) but I had not read the case until this week. So, I thought I would summarize Pataky v. Pataky.

The case deals with an unincorporated separation agreement that was entered into by the parents that discussed child support and how the parents were going to pay for the minor children. Since the separation agreement was unincorporated that means that the agreement cannot be enforced by the courts. However, a separation agreement is a contract between the parties and the court is without power to modify except (1) to provide for adequate support for minor children, and (2) with the mutual consent of the parties thereto where rights of third parties have not intervened. Further, where parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption in NC that the amount stated in the agreement is just and reasonable.

In the Pataky case the Plaintiff wanted to modify the child support amount that was agreed upon in the separation agreement. Since there is a presumption that the child support amount given in the separation agreement is just and reasonable the Plaintiff had overcome the presumption. Typically to modify child support one must show a substantial change of circumstances. This standard is used for child support cases that have been determined by the courts. However, since this case was dealing with an unincorporated separation agreement where child support had not been judicially decided upon, the standard changed. The courts found in the case that a party seeking an initial judicial determination of child support where the parties have executed an unincorporated separation agreement need not show changed circumstances between the time of the separation agreement and the hearing, but must instead show the amount of support necessary to meet the reasonable needs of the children at the time of the hearing.

Thus, a party must show that the needs of the children has increased to where more money is needed or that the needs of the children has decreased whereas less money is needed.

About McIlveen Family Law Firm

The McIlveen Family Law Firm handles all types of divorce and family law cases.


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