Edward R. Weinstein, Esq.

May A Woman Resume Her Maiden Name During A New Jersey Divorce?

Women have the right to request that a judge of the family part, Superior Court of New Jersey, allow them to resume their maiden name. As a seasoned divorce attorney, I always advise my client that they are permitted during the final stage of their divorce proceeding to make this request. If they choose to resume their maiden name, this will be incorporated in the final judgment of divorce. Beforehand and on the record, during an uncontested divorce hearing, your lawyer or the judge will ask: 1. By requesting a return to your maiden name, are you trying to avoid any criminal prosecution? (hopefully the answer is no haha); 2. Are you making this request to avoid any creditors and/or do you presently have a pending petition in a bankruptcy court? (Again, hopefully the response is in the negative, and if so); 3. Am I correct that you are only making this request for personal reasons? (Answer this one YES!). Then your attorney shall be asked your date of birth and the last four digits of your social security number and then the court order effectuates the resumption of your maiden name. For reasons that are quite obvious, I have found that most women do not take back their maiden when they have children, in order to avoid any confusion down the road with teachers, physicians and the like. Finally, you If you did not regain your maiden name during your divorce, my office can still assist you via a post-judgment motion.

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This is due largely to the fact that every adult has a common law right to change his or her name. The paramount 1975 case of Egner v. Egner, established that it makes little sense to force a divorced wife to file a separate action to resume her maiden name when it could easily be done during the divorce. The more recent 2012 case of Riccioli v. Riccioli, established that such a name change is not restricted to any time period, and that a divorced wife can file an application to resume her maiden name at any time after the final judgment of divorce is entered.

In the case of Egner v. Egner, three different ex-wives consolidated their claims and filed an appeal from the orders of three different New Jersey Superior Courts that denied their unopposed motions seeking leave to start using their maiden names again, under New Jersey Statute 2A: 34-21 and 2A: 52-1, because of their status of mothers of infant children who were also in their custody. All three of the judges relied on the dictum of W. v. H., without citing any authority, to reason that it is against the court’s policy to give permission to regain a maiden name when there are unemancipated children who had a different name involved.

Dictum is a statement, comment, or opinion stated by a judge in the decision of a case concerning legal matters that do not directly involve the facts or affect the outcome of the case, such as a legal principle that is introduced by way of illustration, argument, analogy, or suggestion. Dictum has no binding authority and, therefore, cannot be cited as precedent in subsequent lawsuits.

The courts also pronounced, again without citing any relevant authority, that if the wife had custody of any infant children born of her marriage, any application to resume her former name, would ordinarily not be granted unless of course good reasons existed. The three appeals were consolidated for into one for convenience.

The Egner trial judge stated concern for future harassment of young children, who would continue to bear their father’s name. The Walls judge was worried about the possible detriment to young children because their name would be different from their mothers. Interestingly, neither the Walls nor Egner trials admitted evidence that supported the same conclusions. In the Coon case, the trial judge noted that if a wife wanted to change her name legally, she could make an application to the County Court with a statutory change of name proceeding under New Jersey Statute 2A:52-1. In such a case the wife would be entitled to a name change unless there was a showing of a fraudulent purpose.

The Appellate Division did not interpret New Jersey Statute 2A:34-21 in the same way the trial courts did. The statute provides that following a grant of divorce, a court may allow the wife to resume using any name used by her prior to the marriage, and can also order the wife to stop using the husband’s name as her own. That statute is in pari materia with New Jersey Statute 2A:52-1, and should be construed with it. In pari materia is a Latin phrase that means a designation applied to statutes or general laws that were enacted at different times but pertain to the same subject or object. Statutes in pari materia must be interpreted in light of each other since they have a common purpose for comparable events or items. Both statutes are remedial in nature and establish methods of judicial recordation of name changes. While New Jersey Statute 2A:52-1 requires a separate hearing for a name change, an alternative exists under New Jersey Statute 2A:34-21, that a name change could be requested by a wife in a divorce action, and if granted, it can be incorporated in the final divorce judgment.

Furthermore, New Jersey Statute 2A:52-1 and similar laws in other states have been consistently analyzed in favor of the common law and not against it. Common law is the principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. According to the common law, any and all adult or emancipated persons have the liberty and freedom to adopt any name as his or her legal name without going to court, unless there is a showing of one of three exceptions: fraudulent purpose, criminal purpose, or the desired name itself is obscene or offensive.

Moreover, the principles of statutory construction do not allow judges to add another exception, concern for any harassment or detriment to the child that may ensue from a name change, into New Jersey Statute 2A:34-21. In fact, the Appellate Division did not find any perceivable or significant problem, from an ex-wife resuming her maiden name to the welfare of the child. The panel analogized the current issue to one of remarriage. If a divorced woman remarried her name would change, but statistically her children’s name would remain the same. The New Jersey case of Sobel v. Sobel, established that a birth father may restrict his divorced wife from changing their children’s last name to that of her second husband. New Jersey Statute 2A:52-1 further prohibits the change of a child’s name without the consent of the birth father, as long as that father contributed to the child’s support and did not otherwise abandon the child. Also, after an annulment a woman automatically resumes her maiden name or previous name by authority of law, without regard to whether she has a minor child or not. Custody is also routinely awarded to maternal grandparents or other guardians who have different last names than the children, upon the death or incapacity of a mother. A parent’s right to raise his or her children as they see fit is a recognized constitutional liberty. Court intervention in this matter could actually cause numerous detriments and embarrassments to a child.

The case of In re Marriage of Banks, reversed the denial of name change to a wife in a divorce action. The court noted that it would be an empty and fruitless endeavor to deny a wife leave to change her name back to her maiden name in a divorce action only to grant it in a change of name proceeding. The scope of discretion in the two proceedings is the same. Any harmful or negative result on the three children in question was speculative at best. Therefore the Appellate Division concluded that the trial judges abused their discretion and authority under New Jersey Statute 2A:34-21, when they refused to change the women’s names in the divorce proceedings.

The more recent 2012 case of Riccioli v. Riccioli, further cemented Egner. The couple had one child together, a daughter born in 1993. The parties were divorced in 2009. The trial court denied the mother’s 2011 motion to resume her maiden name because the motion was dated two years after the final judgment of divorce. Much like in Egner, the Riccioli court iterated that at common law, an adult is allowed to change his or her name without judicial approval and without a public recording of the name. The Appellate Division found that while New Jersey Statute 2A:52-1 authorizes a proceeding for an action of change of name, New Jersey Statute 2A:34-21 establishes an alternative to a separate proceeding when the request for name change is related to a divorce proceeding. Upon a divorce or even after granting one, the court may allow either spouse or partner in a civil union to resume any name used by the spouse or partner before the marriage or civil union, or even to assume any surname at all. Moreover, the statute does not limit this relief to any specified time period. In Cimiluca v. Cimiluca, the court held that a spouse who did not seek a name change at the time of divorce should not be prohibited from filing a motion for the same, with consent, in the future. Such a motion should ordinarily be granted unless there was a compelling reason not to. In the case of Olevich v. Olevich, a trial court interpreted the statute in question to permit a woman to resume her maiden name at any time after the final judgment of divorce, and accordingly granted a request made fourteen years after the divorce was finalized. In Riccioli, the name change came merely two years after the final judgment of divorce. Furthermore, there was no legislation that prohibited a woman from doing so. Therefore the Appellate Division concluded that the trail court was in error for denying the change of name relief, and had no choice but to reverse.

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