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.
