If you dig deep enough into your memories from high school English class you will know that quote is from Shakespeare’s Romeo and Juliet. And while Romeo waxes poetically about why Juliet’s name should not matter, the truth (as they both learn), is that a name is very important.
For many married couples, one of the parties changed their legal name as part of the marriage ceremony. It could be a Husband/Wife who took the other party’s name or it could be a situation where both parties moved to a hyphenated surname. The symbolic act of changing your name at marriage is meant to show the world the joining of two people. However, what do you do when those same two people decide they want a divorce?
The answer is actually pretty simple…you just ask. Every family law divorce Judgment will include Form FL-180 (Judgment). On that form at paragraph 4(f), there is a line that says “The Petitioner’s/Respondent’s former name is restored to __________.”
By checking that box the party(ies) who changed their name can ask the court to restore their former name. There is no other legal process required. However, the reader is reminded he or she will still have to work with the social security office, the DMV, the passport authorities and any other governmental agencies necessary have his or her name changed with that agency or authority.
There are a number of reasons why a party would keep their married surname even after a divorce; especially in a long term marriage. Children are a big reason why many parties maintain their married name. Doing so avoids any question or social stigma related to children having a different last name from their parents. (Though that sort of social stigma is pretty antiquated these days.)
It is important to point out, whether you decide to keep your marital name or have your former name restored, the other party has no say in that decision. That means, the other party cannot force you to keep your married name, nor can they force you to give up your married name. The decision is entirely up to you.
Where the name change issue gets more complicate is when it comes to a couple’s children and their surname. Typically this issue will manifest where one parent has their former name restored and as a result wants the children’s names changed to a hyphenated version of the two. (ex. John Jones & Jane Smith, their children would then be Jones-Smith or Smith-Jones). If the parties agree, the parents can include this as part of the order and the Court should grant the request.
If one parent does not agree with the name change, then the party who wants the change will need to file a motion with the Court asking for an order allowing the name to be changed. When considering the request, the court will look to the best interest of the child to determine whether the request should be granted.
The Court of Appeal undertook this issue in the case Marriage of McManamy & Templeton. In that case, the Court laid out factors that should be considered in determining the best interest of the child which include:
“…the length of time that the child has used a surname; the effect of a name change on preservation of the [requesting parent]-child relationship; the strength of the [non-requesting parent]-child relationship; and identification of the child as part of a family unit. The court should balance ‘the symbolic role that a surname other than the natural [parent’s] may play in easing relations with a new family’ against ‘the importance of maintaining the biological [parent]-child relationship,’ and also consider the embarrassment or discomfort the child might experience if he or she bears a surname different from the rest of the family.”
One thing to keep in mind if you are considering a request to change a child’s surname is contained in a quote from the case above which said; “…[the child’s] understanding of her [parent’s] role in her life will not be based solely on her surname, but will develop in light of [their] conduct and attitudes, particularly [their] active involvement in her life.” Which brings us full circle to our Shakespeare quote, sometimes a name is just a name, and the rose would in fact smell just as sweet under any other name.
Restoring your former name is a very easy undertaking, but it gets far more complicated if the name you want to change belongs to your child. The attorneys at the Law Office of Nancy J. Bickford have the knowledge and experience to assist you in making the right decision for your family and your children.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding changing your name as part of a divorce. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.