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Take back what’s yours: Name change after divorce

Family & Matrimonial Law

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Whether married for a few years or many, divorcing spouses often ask “can I change my name once I am divorced?” or “can I force my spouse to drop my last name after we are divorced?” The answers are yes, and no, respectively.

While times are changing, most women still adopt or at least hyphenate their last names when they marry, taking on their husband’s last name. When there are children of the marriage, the children are typically known by the husband’s last time. In the instance of same-sex marriages, names are often not changed upon marriage, but can be. And in some cultures, the husband hyphenates his last name to add the wife’s. Whatever choices are made, divorce often raises the question of name use going forward.

So the answer is “yes,” If you adopted your spouse’s name or otherwise changed your last name at the time of marriage, then at the time of divorce, you can resume your maiden name or any prior sur name used. And the answer is also “no,” one spouse cannot force the other spouse to cease using the married name they chose to adopt at the time of marriage. The choice lies with the party who changed their name upon marriage, as to what they wish to do at the time of the divorce.

Resuming the use of a maiden or prior sur name is gender-neutral and applies to either spouse. It also does not require a separate application to the Courts for a formal Order. The judgment of divorce itself can, and should, provide for resumption of any prior name and the name a party wishes to resume use of, should be spelt out specifically in the divorce judgment. That document can then be presented to agencies, financial institutions or any other entity that requires proof. This will allow a spouse to change their name on bank accounts, drivers’ licenses or any other official documentation.

So for the parties in a divorce, the name change is easy. As for children of the marriage however, their names will not be changed simply by virtue of the divorce decree. Unless the parties agree to change the last name of a child or children, the names cannot be altered while a child is still under the age of 18.

On rare occasions a court will entertain a parent’s request to change a child’s last name over the objection of the other parent. But that requires a legal and rational basis, such as a case where the parent and child share their last name with has become notorious through some publicized criminal or scandalous event. With good cause shown and demonstration that it is best for the child, a court can consider an application to change a child’s name despite parental disagreement.

However, once a child is 18, they can make their own application to a court to change their name provided it is not being done to hide from creditors, criminal charges or any other improper motive. But note, that unlike a spouse name change upon divorce, a child’s name change requires a separate and distinct court application.

 

Barbara J. King is the chair of Tully Rinckey PLLC’s Family and Matrimonial Practice Group. A partner-level attorney, Barbara represents clients in divorce, separation, equitable distribution, annulment, child support, child custody, spousal maintenance and adoption proceedings.

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