Many parents who have already been through a divorce do not want their ex-spouse’s last name associated to their child in any way. These parents do not want the last name announced in public, described in a written document or appear on a piece of mail in their mailbox either. Why?
Some parents experience mental stress when they hear or read the last name of their ex-spouse. They live through their marriage over and over again in some ways or feel they do all of the hard work for the child which creates resentment when they recognize there is still an association to the ex-spouse through the last name. Parents who feel this way simply want to put that chapter of their lives (their previous marriage) behind them in every way possible. So, is there anything a parent can do to move the process of changing the last name of their child forward? Does the parent always have to obtain their ex-spouse’s consent to change their child’s last name?
In most situations both parents need to agree and authorize a document to change a child’s last name. In other words, mutual consent is usually the norm. Otherwise it can be very difficult to gain the approval of the court. Yet, there are some underlying assumptions that govern the need to obtain mutual consent. A few examples are:
- The father has paternity rights to the child (parents were married before giving birth to the child)
- Both parties are listed on the birth certificate
- The father has remained a responsible parent to the child
Traditionally, in a divorce proceeding, a judge would lean towards awarding a father the right to have his child keep the father’s last name. Yet, if the father no longer functions as a responsible parent the father may have unknowingly altered his rights. The definition of what a responsible parent means and whether the father is compliant may be up to the judge, not you. It all depends on the evidence you bring forth to substantiate your position. It should be noted the criteria to award a change of the last name may differ if the father is an adopted father or a non-biological father. Each situation must be handled on a case by case basis.
If there is enough evidence to demonstrate the father is not a responsible parent the other spouse may have the right to change the child’s name without the consent of the father. Yet, special circumstances govern whether the court will approve your request. Examples include whether:
- The father was imprisoned for murder, sexual abuse, among other offenses
- One parent issued a “no contact” order restricting the other parent from contacting the child
- The child attempts to run away from the home to escape maltreatment from the father
- The father is a dysfunctional parent
- The family court has initiated an order where the father needs to have another responsible adult present whenever he is with the child
- The father cannot be physically located and therefore the other spouse cannot obtain the father’s permission to change the last name of the child
In these situations a parent may be able to petition the court to change the child’s last name.
The parent seeking the name change would file what is known as a Petition for a Name Change on behalf of the child who is under legal age. Both parents may be required to attend a hearing to approve or reject the name change. If your ex-spouse opposes the request to change the name or does not respond to the request the judge may have to make a unilateral decision that is in the best interest of your child. This may not turn out to be in your favor. To move towards your preferred outcome it would be best to have a well documented position where all the facts are clear and the profile of your ex-spouse is supported by clear evidence too. The process to substantiate your position is not always as easy as it sounds. You have to figure out all of the questions the judge may ask in her or his mind. In essence you have to think like the judge who will make the final decision about your case. If you don’t assume the judge’s role you could end up with an unsatisfactory decision as your position was not properly substantiated. Building a logical argument is critical to achieve your desired outcome. Many parents who are emotionally charged are challenged to define and document a clear and compelling position. It is usually wise to have a professional capture all of the facts and challenge the thinking process to ensure all of the issues are clearly documented from a judge’s perspective. The benefits can be highly beneficial to not only manage your expectations but place more odds in your favor to achieve your desired outcome.
If the document clearly states your position it may be wise to include it as support when you submit the request for the name change. Otherwise the judge may have limited to no context or basis to make a decision. It may also be wise to include a cover letter that introduces who you are and the reason you are requesting a name change. Having a document that substantiates your background would be helpful too. The judge may ask lots of questions about you such as your good standing in the community among many other questions. You will need to substantiate your good name and why the judge should award a change to your child’s last name. It is important to remember the judge sees the child as her or his client per se. Therefore the judge has to look out for the best interests of the child at every step of the way.
After you submit a request to Petition the Change of Name it will usually take between 6 to 12 weeks to get a court date on the calendar. If the court approves your case you will receive what is known as a decree to change your child’s name. The court process may take up to 3 months depending on the backlog of cases. The process you will have to adhere to typically follows these steps:
- You will need to fill out the requisite court forms (refer to your local family court’s filing requirements)
- You should review all of the forms before submitting any of them to the court for accuracy and completeness
- You should make 3 copies of all of the forms: one to submit to the court, one to keep for your permanent files and one to provide your ex-spouse, if needed
- After you have all of the copies in hand, you will then file the forms with the clerk in the court. Try to get the forms stamped with the date/time otherwise you may not have the requisite evidence you will need to substantiate your request for the name change.
- If you cannot locate your spouse you may need to send a copy of the relevant documents via certified mail and also publish the “order” (the request for a name change) in the appropriate newspaper(s) to show your reason for the Change of Name. These steps may provide adequate evidence that you have taken steps to notify your spouse about your request for the change. Just in case you are ever challenged in the future, it would be wise to keep a copy of any announcements you make in public newspapers or other journals in your permanent file. If you are unaware where your ex-spouse resides it would be best to mail the submission of your request for the name change to his last known residence. Before you do that attempt to contact the local town to determine who lives at that residence. Otherwise your efforts may not be worthwhile. If you cannot determine a last known residence the best you can do is publish the request for a name change in your local newspapers and a national newspaper.
- You will likely need to attend a court hearing, possibly with your ex-spouse if he responds to your public notification
- If the court approves of the change of name you will receive a decree reflecting the change of your child’s last name from the court
It is worthy to note, the parent who seeks a name change may open up a can of worms going down this process. The court may perform a background check on the requesting parent. If things did not turn out well the requesting parent may face other unexpected challenges. If a parent requests a change of name the courts will evaluate many factors in their decision such as:
- How old is the child at the current point in time?
- Does the biological father have any custody rights?
- How long did the child use the father’s name during her or his life?
- What impact would a change of name have on the child?
- How strong is the child’s relationship with the mother (and the father)?
- What will the child’s new last name be after the name change?
- Will the child receive a last name that will be fitting for the child’s future?
- Will the child have to identify with a new family unit?
- Is someone else functioning as the adopted father?
- Does the child have a strong relationship with the adopted father?
These are the types of questions you need to ask yourself to best manage your position through this process.
Note: This is not an exhaustive process nor a comprehensive list of issues that may arise. Everyone’s situation is relatively unique. The evidence needs to be crafted in such a way that is well positioned and sufficiently compelling to make your case.
Timing is important in these situations. The older the child is in life the more challenging it becomes to change the name. Why? At a younger age the child may not make a direct association to her or his last name. At an older age the child could feel like he or she has lost her or his identity making it more challenging to gain the court’s approval. It is important to note, if circumstances warrant, you may be able to change your child’s last name if and only if the divorce decree does not restrict you from executing this process.
Please know this is article is not formal legal advice. We are not attorneys. We are financial experts who partner with divorcing parties to achieve desired outcomes. In context to a dispute, a change of a child’s last name is deemed a negotiation and would ideally be addressed during the divorce proceeding. We refer to this as a non-monetary, tradable component. How your child’s last name is handled would be incorporated into the divorce decree for a judge to approve. It is best to incorporate name changes during the divorce process not at a later point in time. Where a name change is desired after a divorce is completed it is still a negotiation and can be challenging how to best capture your position to achieve your desired outcomes.
About the Author
Larry Smith CPA, MBA — Larry is a Founding Partner of Divorce Outcomes, a specialty professional services firm that analyzes, architects and negotiates all of the financial aspects of a divorce.
Since 2003, Larry has worked with divorcing parties as their fiduciary to design sophisticated divorcing strategies that enable clients to preserve and create wealth from their divorce. As a technical financial expert, he uncovers hidden tradable components through various analytical and architectural processes to arrive at desired outcomes. He is an alumni of KPMG and Andersen and has expertise in:
- technical accounting, taxation, business consulting, risk management, M&A
- forensic analysis, performance analytics
- M&A, business valuations, divorce management, family equity transfers, multi-party negotiations, communications management
- advanced process engineering, cognitive performance technologies
If You Have a Question
If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in a divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients:
- manage their divorce process
- uncover hidden financial risks
- architect divorce solutions
- manage ever-changing negotiating positions
- communicate complex financial matters
- close the divorce process as soon as possible
Throughout the process we evaluate our clients’ current wealth-at-risk and architect desired outcomes to best preserve or create wealth.