What’s In A Name: Divorce and Name Changes

By Jennifer M. Paine

Attorney, Cordell & Cordell

Note: This is part 1 of a two-part series on name changes after a divorce. Part 2 addressed what needs to be done if someone in your family does change names.

That debate you had before your marriage – should your wife change her last name or keep her maiden name, hyphenate it or use both – will resurface when you divorce.

If your ex-wife will not change her last name, can you force her to? The short answer is, no. But there are exceptions.

 

State laws allow a person to adopt almost any name for almost any reason. This may be informally through usage or formally through a court order. In many states, one may adopt a name at will, by, for example, using it for employment, for doing business, for socializing, etc. This is”change by usage” and the name change is legally recognized, as if the individual had obtained a court ordered name change, unless the use is fraudulent.

In all states, one may also petition the court for an ordered name change. The procedures vary by state, but, in general, the court will require a certain length of residency in the state and testimony that the individual is not ducking from a crime or engaged in fraud. (e.g., changing a name to avoid paying bills). This “change by court order” is often required for banks, businesses and government agencies.

So long as the new name is not fraudulent, frivolous or scandalous, the state will accept it.     For example, a judge will probably not approve a change to the name “Kid Rock” (to trick people into believing you are the rock star) as fraudulent, the name “KFC Chicken” (or your favorite food) as frivolous, or the name “[expletive]ed” (maybe you feel that way after your divorce) as scandalous. But that standard is not as high as it seems — witness the names P. Diddy and Chad Ochocinco.

That means you (and your ex) may use almost any name for any reason or for no reason at all.

That also means a married woman doesn’t have to adopt her husband’s last name. Conversely, when she’s divorced, she doesn’t have to give up her husband’s last name, either. So long as she is not engaged in fraud, frivolity or scandal when deciding to retain his last name, she can keep it no matter how mad he is.

But does that mean your ex-wife can change your child’s last name to almost any name for almost any reason or no reason at all? No. Parents may disagree whether their child should use the father’s last name or the mother’s maiden name, a hyphenated name, the custodial parent’s new spouse’s last name, or, for unmarried parents, whose last name to use at all.

In many states, if the parents are unmarried, the decision is the mother’s, see, e.g., Garling v Spiering, 203 Mich App 1; 512 NW2d 12 (1993), unless both parents acknowledge paternity in a state-approved written document at the child’s birth. If the parents are married or acknowledge paternity, then neither parent may select or change the child’s last name absent the other’s consent or a court order.

Over one parent’s objection, a judge may select the child’s last name if the judge determines that the name is in the child’s best interests, see, e.g., Rappleye v Rappleye, 183 Mich App 396; 454 NW2d 231 (1990), or if the noncustodial parent has not contributed to the support of or maintained contact with the child, id.

 

Note: This is part 1 of a two-part series on name changes after a divorce. Part 2 addressed what needs to be done if someone in your family does change names.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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9 comments on “What’s In A Name: Divorce and Name Changes

    Need advice! My husbands ex-wife is pregnant with another mans baby whom we don’t know who the father is. She still has his last name therefore, this baby will have his last name when it’s born. Can he somehow have a court order for her to change her last name so a baby that’s not his doesn’t have his last name? We live in Indiana.

    My father recently passed away and my stepmother has our last name, she’s a drug addicted and a felon who is ruining our good name. Is there anyway we can petition for her to change it so my family name isn’t ruined?

    Yes, I have this question also. My dad‘s ex wife broke up our family when we were very young for 40 years has username for business reasons which she is not in the profession of any longer and has been married three or four times since she uses it as the name right after her first name and-it’s one other and then puts two others and parentheses. It sickens me how she exploded our family and still seems to do so using our name it is a pride thing. The name is inherent it isn’t used as a token or for financial reasons which is what she did Even by Profit team in the divorce by selling our home as a realtor and taking our furniture into her home which she had my dad remodel when he was done she threw him out saying that he wasn’t paying well enough for her daughter’s well-being expecting him to take away from us which is what he did. I want her to stop using our name can I get this done through the court?

    My ex-wife divorced me and remarried. She changed her name to her new husband’s name legally. She recently divorced him, and now I hear she wants to change her last name BACK to my last name. Can she do that?? I’m remarried, and my wife and I do not want my ex to have my name again. What is the law?

    I would like to know this as well. My husbands Ex Wife who got remarried changed her last name to his, then os now divorced again. She is all the sudden using our last name! It’s creepy!

    It’s phycho when your ex wife can leave you… but when u meet someone and remarry and are HAPPY…then they turn psychotic! I was only married to her a few years! Me and my current wife have been together 11 years!!! My ex got remarried since our divorce years ago…changed her last name to his as u do when u get married…but he left her 6 months later…so after their divorce… she went to court and TOOK my last name back!!!…WITHOUT me knowing it!!!!! and had to pay for it.. and go to court! Like the other guy said this b;$;: is CRAZY!!! How is this legal?

    Yes my name is Thomas Harrison my exwife Lindsey is using my last name and she did our own divorce and went back to her maiden name now she has 4 Facebook accounts in my last name I haven’t even checked my credit to see if she used it on anything but isn’t this illegal though she has no right to be using my last name anywhere after she went back to here maiden name in the divorce decree.

    I’m a father going for sole custody of my child, due to not being able to exercise my court ordered visitation rights, basically because his mother would not allow me to.

    Either her or the judge has changed my son’s last name to his a hyphened last name between myself & his mother’s.

    Once I’m awarded sole custody of my son, would I be able to change his last name back to my last name, which was what it originally was to began with, even though his mother will disagree, basically to just to be difficult?

    Thanks in advance

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