In general, a husband cannot legally force his wife to change her last name during a divorce.
However, there are specific circumstances under which a court could intervene and order the last name of a wife to be changed. This is uncommon and typically involves the wife misusing or abusing the married name.
This article will discuss a few exceptions to the general rule which would allow a husband to have his ex-wife’s last name changed.
Situations When a Husband Can Get His Wife to Change Her Last Name During A Divorce
A husband typically cannot legally force his soon-to-be ex-wife to change her last name during a divorce. A person’s last name is an individual right protected by law.
This means the decision to change her name during or after a divorce is largely up to the wife.
However, there are specific circumstances under which a court could intervene or influence this decision. I have only seen a couple of these during my career as an attorney. They are rare and difficult.
These situations do not involve the husband ‘forcing’ the wife to change her name but rather asking the court to make the wife change her last name based on law and fairness. This will be extremely difficult if there are any children born during the marriage.
A few potential circumstances where a judge might order the ex-wife to change her name include the following:
1. Fraudulent activity or criminal behavior
A court could intervene if the wife uses the husband’s last name to commit fraud, mislead others, or engage in illegal activities.
Or, if there’s evidence of fraudulent behavior, such as the wife marrying the husband with ill-intent solely to exploit his name for financial gain, reputational benefit, or other harmful reasons, it may be possible to involve the courts.
2. Reputation damage
If the wife uses her married name in a way that causes significant harm to the husband’s reputation, the court might consider intervening or ordering the ex-wife to change her last name.
3. Harassment or coercion
If the wife is using her married name to harass or coerce the husband, it’s possible that a court could require a name change.
4. The marriage was very short, and there are no children
In a rare situation, a judge might consider ordering a name change for an ex-wife in a very short marriage with no children.
Negotiating a Name Change As Part of The Divorce Settlement
One option to get your spouse to change her last name is to negotiate a name change as part of a divorce settlement.
If both parties are open to the discussion and willing to negotiate, here are a few steps to consider:
- Negotiate it as part of the divorce settlement: Your best option is to negotiate for her to revert back to her maiden name in the divorce decree. Consider compromising on an area that she feels strongly about if it’s important to you. It may be that it cost you money or some piece of marital property in exchange for her agreeing to change her last name. In my experience, in a contentious divorce, this may not be possible.
- Mediation: If you find reaching an agreement difficult, consider hiring a mediator. Mediators can facilitate the conversation and suggest compromises that both parties find agreeable.
- Suggest a Compromise: You could consider offering her to consider hyphenating the last names. It’s a common practice during marriage and can still be an option after divorce. This way, she can keep a part of her last name that matches her children’s, avoid confusion with business contacts, and find a middle ground if you feel she shouldn’t use your name completely.
- Get The Agreement in Writing and Include it in The Settlement Agreement: If an agreement is reached about the name change, ensure this agreement is included in the divorce settlement and is clear, concise, and legally sound.
Remember that forcing someone to change their name is generally not permitted under the law, so the aim should be to negotiate an agreement that both parties find acceptable.
Frequently Asked Questions
Q. Can the divorce agreement include a provision requiring the name change?
Yes, the divorce agreement can include provisions regarding the name change. If both parties agree to such terms, they can become legally binding and enforceable.
Q. What if the ex-wife refuses to change her last name?
If the ex-wife refuses to change her last name and there are no provisions in the divorce agreement, legally enforcing a name change will be very challenging.
Q. Can a husband change his last name during a divorce?
Yes, a husband can change his last name in most states during a divorce. But, this is not true in all states.
For example, in New Jersey, either the husband or wife can “resume any name used by the spout before the marriage . . . or assume any surname.” NJ Rev Stat § 2A:34-21 (2013).
On the other hand, Texas will allow a name change of either spouse at the time of divorce, but only if the name is back to a name previously used by the person before the divorce. Tex. Family Law Code § 6.706.
Q. Can a woman change her name after she is already married?
Yes, a woman can change her last name after marriage.
Our research had disclosed no case in any state which affirmed the trial court’s denial of a married woman’s name change petition on the ground of an ongoing marriage. Petition of Hauptly, 312 N.E.2d 857 (Ind.1974).
These cases hold that it is an abuse of discretion for a court to deny a married woman her right to change her name on grounds because she is married. In the Matter of Natale, 527 S.W.2d 402 (Mo. App. 1975)
Conclusion
In most cases, a man cannot make his ex-wife change her last name after a divorce. Changing one’s last name is generally a personal choice, and courts are only willing to intervene if there are compelling reasons or the parties agree.