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WHAT'S IN A NAME? Dealing With Name Change At Divorce -- Or Not

NAMECHANGE.jpgJack Smith's ex-wife sent him a ranting letter every month -- asking why their house had not sold -- and every month sealed the letter with the same address label, one of those free labels that come in droves with holiday themes and "Mr. and Mrs." so-and-so -- Joselyn Smith. It was annoying enough that she sent the letter. He wanted to keep the house, but the judge ordered them sell it and split the profits or debt. It was an extra kick that she still used her married name on those address labels. They had been divorced and trying to sell their home for a year, and she clung to that last name as if out of spite. She used it on her driver's license, her stationery, her e-mail signature, her credit cards, her online profile, everywhere. And she was not what you would call a wholesome ex-wife -- she had a reputation for fighting, for gossiping, for spending, for partying. But Jack could not force her to change her name.

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 "[explicative]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 need not adopt her husband's last name -- and, when she's divorced, she need not 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 before 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.

If someone in your family does change names, be sure to update, at a minimum:

Social Security Administration: To update a Social Security Card, complete Form SS-5, the application for a Social Security Card, and mail or hand deliver it to any local office with proof of citizenship, such as a birth certificate or a passport, and a certified copy of the order for the name change, such as a divorce decree. You can learn more online at www.ssa.gov.

Passport Agency: To update a passport, mail or hand deliver a Renewal Application, along with two color photographs, proof of citizenship, such as a birth certificate, and an original or certified copy of the order for the name change. Regional passport agencies may process applications the same day, for a special fee, but for most applications the agency retains the documents and returns them by mail with the updated passport. You can learn more online at www.dos.gov/passport.

Department of Motor Vehicles: Most state departments of motor vehicles will update a driver's license upon receipt of an application, a copy of the current driver's license, and proof of the name change, such as a certified divorce decree. (And, of course, a fee). Contact the local branch office to learn more.

Schools: For children, school staff, including teachers and medical personnel, should receive a copy of the order for the name change and a letter explaining what rights the parent with the different last name has. It is common for teachers to assume, for example, that a father with a different last name does not have "rights" to the child and, therefore, cannot consent to school discipline or receive notice of school events or emergencies.

Support Disbursement Unit: For cases with child or spousal support orders paid through the State Disbursement Unit (also known as the Title IV-D program or the IV-D service), notify the SDU of the name change immediately, in most states within 21 days of any name change. Otherwise, the SDU may not credit payments to the payor's account or send them to the payee. The change could take several weeks to complete, so keep accurate records of all payments made and all receipts to correct any accounting errors between the date the SDU receives notice of the name change and the date the SDU updates the account. The SDU is a large agency, and errors happen. Contact an attorney in your area or the SDU to learn more.

And don't worry about those address label companies -- they'll send labels in droves without your asking.

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