Many newlyweds are excited to change their last names immediately after the wedding. The quick embrace of this new name quickly sours in a divorce setting. The decision of whether to change your last name in that context can be daunting; especially if you have young children. There are many questions to consider when deciding whether to change your name as part of a divorce.
Assuming there are no grounds for the Judge to deny a name change, as further explored below, it is a simple and straightforward process for a party to change his/her last name in a divorce. In fact, it is easier for a party to change his/her name in connection with marriage or divorce than it is for a non-married individual hoping to accomplish a name change.
So long as the parties’ divorce is before the Court, you don’t have to file an entirely different action or incur additional costs associated with a separate pleading to change your last name. A party changing his/her name in the divorce is guided by its own statute, namely N.J.S.A. 2A:34-21, which provides:
The court, upon or after granting a divorce from the bonds of matrimony to either spouse or dissolution of a civil union to either partner in a civil union couple, may allow either spouse or partner in a civil union couple to resume any name used by the spouse or partner in a civil union couple before the marriage or civil union, or to assume any surname.
Ideally, the request for a name change should be included in the Complaint for Divorce, but the failure to include such a request is not detrimental because it could still be sought at the divorce hearing. In the case of Cimiluca v. Cimiluca, 245 N.J. Super. 149, 152 (App. Div. 1990), the Court held that “the failure of a spouse to file a pleading seeking a name change authorized by N.J.S.A. 2A:34-21 should not bar a written or oral motion made with consent at the divorce hearing to amend or add pleadings to achieve that end.” Whether sought in the initial Complaint or thereafter, the process for obtaining the name change as part of the divorce is straightforward. Your attorney or the Judge will ask questions to verify the name change is not being sought to evade creditors, bankruptcy, criminal charges or for any other nefarious purpose. Assuming the underlying basis to obtain a name change is genuine and the name sought is proper, it should be granted by the Court. Bear in mind, even when a Judgment of Divorce allows for a name change, it is generally not automatic and does not become effective until the party afforded the name change takes steps to do so, i.e. filing with Social Security, changing bank accounts, etc.
Of note, however, the Family Court cannot grant a name change prior to the Judgment of Divorce or incident to a Divorce from Bed and Board because N.J.S.A. 2A:34-21 does not apply if the parties are still legally married. In Leggio v. Leggio, 436 N.J. Super. 641, 643 (Ch. Div. 2014), the court found that parties to a Divorce from Bed and Board “continue to be married in the eyes of the law” and “[a] bsent entry of a judgment of absolute divorce, an application for name change would be governed by the more burdensome and time-consuming requirements of the general name change statute" (which is different than the one we refer to in this blog).
The Court previously had the discretion, under N.J.S.A. 2A:34-21, to order a wife to be refrained from continuing to use the husband’s last name after the divorce. However, a 1988 revision to this statute eliminated this restriction. Therefore, the Court can no longer demand a party change their last name. In other words, while a spouse may resent the fact you share a last name, you cannot be forced to change it.
There are also many reasons why a party may not want to change their name at the time of the divorce, such as having young children who share their name, which may not be important down the road. Although it is a bit more complicated to obtain a name change after the Judgment of Divorce, it is still possible. The divorced party would have to file a post judgment motion in the Family part (an application filed with the court after the divorce is finalized). There is no time limitation to seek a name change after the divorce. For example, Olevich v. Olevich, 258 N.J. Super. 344, 345 (Ch. Div. 1992), the wife was permitted to resume her maiden name fourteen (14) years after the Judgment of Divorce.
This is unlikely unless your name change is being sought to avoid creditors, criminal charges or upon other improper grounds. The Court may also refuse to grant a name change if the name sought is vulgar or intended to deceive others, such as the adoption of a celebrity name or noble title, such as Earl or Baroness.
On rare occasions, a party will seek a name that differs from their birth or prior legal name. Even so, any name can be chosen so long as it is sought for lawful purposes. This applies to last names only (not changing your first name). In this context, I have witnessed very interesting choices for last name changes, including names that reflect the spouse’s occupation or favorite color. Without much restriction, the possibilities are endless and can be an opportunity for a new beginning.
The attorneys at Ruvolo Law Group, LLC, are fluent in the steps that must be taken to ensure you reach your goals in a divorce, including obtaining a name change. Should you wish to meet with one of our attorneys, contact us at 973.993.9960 and speak with one of our case managers who can schedule a consultation.
Blog authoried by Alyssa S. Engleberg, Esq.