Social Security & Divorce

Social Security benefits are available to people who were in the workforce for a minimum of ten years and are at least 62 years of age. The benefit one receives is based on a calculation of one’s age and earnings history, i.e. how much the person paid into the Social Security system.

So, what happens, for example, to a stay at home mom, who spends her working years raising children and managing a household, then reaches retirement age and gets divorced without ever having been in the workforce? Is she out of luck?

This question may sound odd to you, but over the past few decades there has been a marked rise in what is termed Gray Divorce, which is generally defined as divorce among older couples who had long-term marriages. Divorce at any age can be financially devastating, but whereas the younger you are the more time you have to rebuild and recover financially; older people may have very little or no time to recover.

Fortunately, the stay at home mom in our question above is not completely out of luck. According to Social Security laws, if you get divorced and were married for at least ten years, are aged 62 or older, and your ex-spouse qualifies for Social Security retirement or disability benefits, you can receive benefits based on what your ex-spouse paid into the system. The benefit received is one-half of your ex-spouse’s benefits depending on your exact age.

One caveat is that you cannot be remarried at the time of filing for benefits. Also, if your ex-spouse has not yet applied for benefits, you will need to have been divorced for at least two years before you qualify to apply for benefits.

Contact a Divorce Family Law Attorney in Raleigh to Help You with Your Divorce

If you want or need to get divorced or are already going through a divorce, Midtown Divorce & Family Law can help. Call us today at 919-900-7747.

Wrong Father Named On Birth Certificate?

Under NC law, for every child born in this State a birth certificate must be filed.  Birth certificates are filed in the county where the child is born, and, among other things, list the names of the child’s parents.  If the mother is married at the time, it is required that her husband’s name be listed on the birth certificate as the father of the child.  However, if it is already known that a third person is the father then that person can be listed as the father of the child if the person has been determined in a court of law to be the father, or if the mother, her husband, and the third person all sign an affidavit acknowledging that the third person is the father.  If the mother of the child is not married no father shall be listed on the birth certificate unless both the mother and the father of the child sign an affidavit acknowledging paternity.

So, what happens if the wrong person is listed as the father of the child on the birth certificate?  There are many reasons this can happen, but those reasons are not the point of this article.  Our purpose here is to determine how to fix the problem once it has been discovered.

Where an affidavit of parentage is used, both the mother and the father have sixty (60) days to rescind the acknowledgment.  The party requesting the rescission must apply to the court to order the rescission.  If the court does in fact order the rescission the State Registrar will remove the father’s name from the birth certificate.

If sixty days have passed, there are only two methods for amending the birth certificate where the father was entered based on an affidavit of paternity.  First, a party may prove that the affidavit was entered as a result of fraud, duress, mutual mistake, or excusable neglect.  However, this scenario is rare.  Second, and much more common, is where a DNA test proves the listed father is not the actual biological father of the child, or a DNA test proves that another man is the actual biological father.  This could occur, for example, where a child support action has been filed against the named father, and the named father claims that he is not the actual father of the child.  The court can order a DNA test.  If the test proves the named father is not the actual father, the court will enter an order adjudicating that the named father is not the actual father.  Then he can submit the order to the Registrar in order to have his name removed from the birth certificate.  Likewise, the court could enter an order adjudicating that another man is the biological father of the child, and that order can be submitted to the Registrar to have the birth certificate amended to state the correct father’s name.

The amendment of a birth certificate is controlled by statute, but there are conflicts within the statutes that can complicate matters.  If you need help having a birth certificate amended for any reason, call Amos & Amos, Attorneys at Law, PA at 919-900-7747.  We are here to help.


This is our pledge to you, our clients and potential clients:

  1.  We will remember that the practice of law is first and foremost a profession, and I will subordinate business concerns to professionalism concerns.

  2.  We will encourage respect for the law and our legal system through my words and actions.

  3.  We will remember my responsibilities to serve as an officer of the court and protector of individual rights.

  4.  We will contribute time and resources to public service, public education, charitable, and pro bono activities in my community.

  5.  We will work with the other participants in the legal system, including judges, opposing counsel and those whose practices are different from mine, to make our legal system more accessible and responsive.

  6.  We will resolve matters expeditiously and without unnecessary expense.

  7.  We will resolve disputes through negotiation whenever possible.

  8.  We will keep my clients well-informed and involved in making the decisions that affect them.

  9.  We will continue to expand my knowledge of the law.

  10.  We will achieve and maintain proficiency in my practice.

  11.  We will be courteous to those with whom I come into contact during the course of my work.

  12.  We will honor the spirit and intent, as well as the requirements, of the applicable rules or code of professional conduct for my jurisdiction, and I will encourage others to do the same.

At Midtown Divorce & Family Law we handle all manner of divorce and family law related claims, including divorce, separation agreements, equitable distribution or property division, alimony and spousal support, child custody and child support.  If you are someone you know needs assistance with a separation or divorce matter, please give us a call at 919-803-7208.


DISCLAIMER:  This guide has been prepared for general information purposes and is not legal advice.  Legal advice is dependent on the specific facts and circumstances of each situation.  The information in this guide cannot take the place of competent legal counsel tailored to your specific situation.

This guide will walk you through the technicalities of how to get divorced in North Carolina.    You may have additional issues that need to be addressed prior to filing divorce.  Questions that need to be answered:  1) Do you have minor children?  2) Is there marital property, such as real estate, retirement accounts, personal property or other assets, to divide?  3)  Is one spouse in need of financial support from the other spouse?  If you answered yes to any of these questions, you should not get divorced until you have consulted with a qualified family law attorney as many rights, if not preserved, are waived upon entry of the absolute divorce judgment.