As a sign of love and optimism, many couples cheerfully decide to adopt the same surname upon marriage. For better or for worse, a great number of those marriages end in divorce. So then what happens, at the end of the marriage, to all those shared surnames?
The answer, in each case, is that the partner who changed their surname has the right to either take it or leave it. An attorney versed in family law can help make the transition easier.
Starting in the 9th century, it became customary for a woman to change her surname to that of her husband upon their marriage. This practice reflected a presumption that was then true: Upon marriage, the wife became the husband’s legal property.
Today, happily, that presumption has changed. Another change is the fact that same-sex marriage is now legal in all 50 states.
As a result, not all women adopt their husband’s surname after signing a marriage license, nor are women the only ones who adopt a spouse’s surname upon getting married. Additionally, not all spouses agree to use one spouse’s surname; instead, both partners agree to take a hyphenated surname or one that combines their pre-marriage names.
It’s a spouse’s prerogative to decide how to handle this.
Many people still go the “traditional” route. In fact, almost 50% of Americans in a 2017 survey believed that, at least in the case of marriage between opposite sexes, a woman should be legally required to take her husband’s name.
With that much cultural pressure in play, it’s no surprise that at least one spouse takes a new name in the vast majority of American weddings. This is done both in a legal manner (e.g., affecting how their Social Security card and marriage certificate list their name) and in social terms: how they wish to be addressed by friends and family.
However, somewhere around 45% of American marriages end in divorce proceedings. It doesn’t take a mathematician to recognize what this means: It’s not uncommon for spouses who changed their name upon marriage to find themselves still wearing the surname of a former partner afterward.
While this may be acceptable or even desirable for some, it is decidedly not for others. Fortunately, the choice is now personal, rather than legal. Just as it is now a woman’s choice whether to take her husband’s name, it is also her choice to switch back from her ex-husband's to her maiden name upon getting divorced. The same is true for same-sex marriages that involved a surname change.
As of 2020, all 50 states and the District of Columbia recognize and support a spouse’s decision to revert to a prior surname upon divorce. There are several ways to accomplish this, but the simplest is to get legal help from a qualified attorney to make the name change part of the divorce decree.
If the partner who changed their surname takes no action to get a court order reclaiming their birth name, their married name will remain the legal one when the divorce process becomes final. This fact comes as a surprise to some — and an especially unwelcome one when a client wants an ex-spouse to cease using “their” name.
On the other hand, under constitutional as well as common law, people are entitled to call themselves whatever they want (within the court law-defined bounds of reason and decency), regardless of what their legal names might be.
A spouse who takes no legal action to revert to their prior surname upon divorce can still call themselves by that name — or any other name they wish. If, however, they want to be called something other than their married name, their preference won’t match the legal name on their passport, driver’s license, and bank accounts.
For those who would rather not deal with that kind of confusion — or with retaining a married name to which they no longer feel any connection — the procedure for changing their name back after the divorce case is, thankfully, simple.
In an attempt to reduce paperwork for court clerks and avoid unnecessary court appearances, all states and D.C. provide the option of including a legal surname change in the body of your divorce decree. Often, it’s as simple as filling in the section of the paperwork entitled, “Request for Change of Name” (or some other language to that effect).
Once the divorce decree is final, you can take a certified copy to your local Social Security office and Department of Motor Vehicles to have your identification cards changed accordingly. To obtain a certified copy, you should follow the directions applicable to your jurisdiction; a filing fee may apply (usually less than $10).
As an example, here is the information for obtaining a certified copy of a divorce decree in New York. After that, it’s just a matter of changing your name everywhere else you’ve been using it (e.g., your passport, your credit cards, your post office, online accounts, professional settings, your children’s schools, etc.). Speak with a lawyer in your area if you have questions.
Some divorce attorneys encourage their clients to agree in writing, before the divorce, that a surname change, if desired, will be stipulated under the final divorce decree. This streamlines the process further and often is considered customary, even if neither party believes they wish to resume using a previous surname. See whether your lawyer offers this option.
But divorces stir up emotions, which can cloud judgment. Not everyone thinks far ahead, and no one can predict how they might feel once all is said and done in a divorce. So what happens if your divorce decree is silent regarding a surname change, and you later decide you want your previous name back?
In some states, even if your divorce was finalized without addressing a surname change, you can file for a modification of the divorce decree for this purpose.
For example, in California, you would file an Ex Parte Application for Restoration of Former Name After Entry of Judgment and Order. This document, despite its name, is a simple form you can obtain online, then fill out and submit to the court.
Once the court approves your request, your divorce decree is modified to reflect your desired name change. You can obtain certified copies to get a new Social Security card and a new driver’s license at the Department of Motor Vehicles, etc.
If your state does not provide for modification for the purpose of restoring a former name, you can still legally change your name under the state’s general name-change provisions. Consult a lawyer in your area to find out how to proceed.
When filing, you’ll be asked to state why you want a name change. Many states, including Alaska and South Dakota, specify that the wish to revert to a prior name after divorce constitutes a valid reason. Other states offer a shortcut to the name-change process when the change is a simple reversion to a prior name.
For example, Florida’s Petition for Name Change normally requires that fingerprints be submitted, but not if you’re merely reverting to a prior name. And Illinois, in connection with legislation discussed below, has abolished the requirement to file a name-change petition at all when reverting to a prior name after marriage.
When it comes to proving that your prior name is, in fact, your prior name, each state has its own specific requirements. In New York, for example, you may use your birth certificate.
Your state may also ask you to disclose certain facts about yourself, if applicable, including felony convictions, bankruptcies, and applicable judgments and liens. Some states require disclosure of child-support obligations. Some require disclosure of sex-offender status, if applicable.
These requests are made in the interest of ascertaining that you’re not changing your name to avoid detection, prosecution, or conviction of a crime, as some people try to do. Consult a lawyer to find out what laws apply in your state.
None of these conditions, in and of themselves, constitutes grounds for a denial of a name-change request. In most states, name-change requests are granted as a matter of course, unless the court believes the purpose of the name change is to commit fraud, hide from police, avoid paying child support or other debt obligations, or some other illegal reason.
In addition, your state may require that you be present for a hearing in connection with your requested name change. However, some states, including Florida, will expedite the hearing if you specify you are merely reverting to a prior name.
In the past, some states required additional action to be taken by all name-change petitioners, including publishing a newspaper notification of the impending name change. However, most states do not require such steps when the name change is merely restoring a prior name.
In fact, in legislation made effective Jan. 1, 2020, Illinois abolished its longstanding newspaper publication requirement for those in possession of a divorce decree who wish to revert to their “former or maiden name.”
As with other name-change cases, once you’ve obtained the formal order as a final matter, you can begin obtaining certified copies for the Social Security Administration, DMV, etc.
The most important thing you can do after legally changing your name is to use that name. Doing so not only familiarizes others with your changed (reverted) name, but it also helps you remember which cards, accounts, and documents need to be updated to reflect the change.
In addition to your Social Security card and driver’s license, here’s a list (by no means exhaustive) of legal documents for which you’ll need to formalize your name change:
In summary, if you’re someone who adopted your spouse’s surname upon marriage, and now you’re planning to divorce, it seems wise to consider addressing this with your spouse during your divorce-related discussions. Doing so will allow the insertion of a name-change order into the final divorce decree, if that is the direction you want to go at that time.
If you know you want to revert to your prior name, then, generally speaking, the easiest route would be to build a name change into the divorce decree. If you’re past that stage but still wish to revert to your prior name, please know that it’s not too late. It just requires jumping through a few more hoops.
Be sure to check with a qualified family law attorney in your area to find out the particulars. As you’ve seen here, rules and procedures vary from state to state. Don’t just take our word for it; this article isn’t legal advice. Speak to an attorney to discover and understand the specifics that fit your case.
