In representing a divorce client, one’s inquiry and representation is primarily focused in the major issues in controversy such as the custody of minor children, alimony and child support, the equitable distribution property, and payment of professional fees. Indeed, these are important and crucial issues. However, in the heat of battle, smaller side issues could have a tendency to get lost. The recently published case of Leggio v. Leggio served as a reminder of one of those issues, namely a spouse’s ability to effectuate a change of name incident to a divorce. For many divorce litigants, being able to change their name affords practical as well as emotional benefits, allowing them to move forward with a new identity untethered with the badge of a failed union. Being able to do so incident to a divorce is generally a simple and cost-free way to do so. At the outset of a case, clients should be informed of this opportunity so that it can be addressed accordingly. The purpose of this blog is to highlight some of the practical and procedural considerations involved in effectuating a name change incident to divorce.
At common law, any adult or emancipated person was at liberty to adopt any name as his or her legal name except for fraudulent or criminal purposes, without resort to any court. However, if someone wished to change their name, New Jersey requires that person to institute an action in the Superior Court by the filing of a Verified Complaint accompanying by a Sworn Affidavit under N.J.S.A. 2A:52-1 et seq. Among the information required besides the applicant’s current name and desired new name would be that person’s date of birth, social security number, whether or not the applicant had ever been convicted of a crime and whether any criminal charges were pending against them, and if so, details in conjunction therewith along with affirmation that the action for a change in name was not being instituted for purposes of avoiding or obstructing criminal prosecution or for avoiding creditors or perpetrating a criminal or civil fraud. If criminal charges are pending, the applicant is required to serve a copy of the Complaint and Affidavit upon any state or county prosecuting authority responsible for the prosecution of any pending charges. Court Rule 4:72-1 further details the procedures to be followed in actions for a change of name. There are service as well as notice requirements attendant to such actions, as well as the requisite filing fees to be paid. There are also time requirements which must be satisfied before such applications are heard and any relief granted. It is far from being a simple or pro forma process.
Whether a product of history or convention, a wife usually took the surname of her husband upon marriage. However in the event of divorce, was a wife required to file an action under N.J.S.A. 2A: 52-1 in order to resume her maiden name? With passage of N.J.S.A. 2A:34-21, the answer was no. As originally enacted, the statute authorized a court, upon or after the granting of a divorce from the bonds of matrimony, to allow the wife to resume any name used by her before the marriage as well as to order the wife to refrain from using the surname of the husband as her name. That statute was amended in 1988 and now reads as follows: “The court, upon or after granting a divorce from the bonds of matrimony to either spouse, may allow either spouse to resume any name used by the spouse before the marriage or to assume any surname.”
These changes are significant. The ability to change one’s name incident to a divorce is no longer limited to the wife but to either spouse. Further, a change of name is not limited to a prior maiden name or name actually used prior to the marriage, but may include the assumption of “any surname”. Also, the amended statute also eliminated a husband’s ability to refrain a wife from using his surname. Simply stated, one spouse cannot compel the other to change their name.
How is this dealt with practically and procedurally? Inquiry as to a spouse’s desire with regard to any change of name upon divorce should be made at the outset of representation. If there is a desire to change one’s name, inquiry should also be made as to whether that person has ever been convicted of a crime, whether any criminal charges are pending, whether there are any pending civil law suits as well as actual or potential proceedings involving creditors as well as whether any previous bankruptcies have been filed or are contemplated. These are questions which will be asked of that party in court in regards to his or her name change request, and those responses may bear upon the court’s disposition of that request. The pendency of criminal charges may still require advanced notice to law enforcement authorities, even if not proceeding under N.J.S.A. 2A: 52-1. Raubar v. Raubar, 315 N.J. Super 353 (Ch. Div. 1998). As a general rule, name change requests should be included as part of a parties’ initial pleadings. Including it as a prayer for relief in the Wherefore clause generally suffices. What if you forget to include it in the initial pleading? What if the spouse decides that they want to change their name after the initial pleadings have been filed or perhaps even on the day of their divorce hearing? According to the Appellate Division in Cimiluca v. Cimiluca, 245 N.J. Super 149 (App. Div. 1990), the failure of a spouse to file a pleading seeking a name change did not bar that party from making a written or oral motion at the divorce hearing to amend his or her pleadings to seek same, and that such motion should be granted unless some contrary reason appears, other than the informality of the procedures employed. What if a Judgment of Divorce is already entered and a spouse later decides that he or she wanted to change their name? Are they too late and must they follow the procedures under N.J.S.A. 2A:52-1 if they wished to do so? According to the court in Olevich v. Olevich, 258 N.J. Super 344 (Ch. Div.1992) the answer appears to be no. In that case, the defendant/ex-wife filed a motion with the Family Court seeking to resume her maiden name although the Judgment of Divorce had been entered almost 14 years earlier. Accepting as sufficient her explanation for not seeking such relief previously, the court noted that the language of the statute, N.J.S.A. 2A:34-21, granted a court authority to allow for a change of name either upon or after the granting of a divorce from the bonds of matrimony without the imposition of any time limits with respect thereto. The court noted that there may be reasons why a person would want to defer changing their name, such as avoiding confusion for children or other personal or professional reasons. While this ruling may suggest that such a name change request can be made virtually at any time post-divorce, this is still a trial level ruling and another judge may view the issues differently or require a different threshold level of explanation as to why such a relief had not been sought earlier, so as to limit this opportunity from being totally open-ended.
What if a spouse dies before a Judgment of Divorce is entered? Can a name change still be allowed if sought by the surviving spouse? In the case of Hesson v. Hesson, 392 N.J. Super. 94 (Ch. Div. 2007), the court held that a wife’s right to name change survives the husband’s death prior to the entry of a Final Judgment of Divorce, being of the view that the name change provision of the divorce statute should be construed liberally in the interest of justice, and that in this instance, the wife’s pleadings had established her entitlement to a Judgment of Divorce and default had already been entered against the defendant husband at the time of his death. If default had not been entered, would a different result have been reached? Lastly, in the Leggio case, referenced at the outset of this blog, the court held that the ability to effectuate a name change under N.J.S.A. 2A: 34 -21 only applies to a Final Judgment of Divorce, and not to a divorce from bed and board (sometimes known as a limited divorce) under N.J.S.A. 2A:34-3, since the marital bonds remain intact thereunder.