You aren’t required to take your prior name back when you divorce. Some people keep their married name so it’s the same as their children’s. Others think they’re likely to remarry and don’t want too many name changes over the course of time. And some feel it’s important to change their name -- and their children's names, if possible -- as part of moving on.
If you want to change your own name, your ex-spouse has no say in the matter. If you want to change your kids' names, too, you'll have an easier time if the other parent agrees, but you may be able to do it even if that's not the case. Read on for more information.
If you want to go back to using the name you had before your marriage, it’s best to take care of it during the divorce proceedings. If you wait until the divorce is final, you may have to pay additional court filing fees and go through a separate procedure to change your name. In most places, the divorce petition form will ask whether you want a name change as part of the divorce—if it doesn’t, then the final order is likely to have a place where you can ask for that. Or you can include a provision in your marital settlement agreement if you write one.
After the judge signs the order approving your name change, you’ll want to get certified copies of it. Check with the court clerk for details. You’ll use this official documentation to have your name changed on your identification and personal records.
If your divorce decree doesn’t contain an order restoring your former name, check to see whether it can be modified to include the necessary language. In some states, this is possible even after the divorce is final. (For example, in California, you can use a form entitled Ex Parte Application for Restoration of Former Name After Entry of Judgment of Order (FL-395).)
Even if your divorce papers don't show your name change and you can’t have the papers modified, you may still be able to resume your former name without much fuss, especially if you still have some proof of that name, such as a birth certificate or old passport. In some states, you can simply begin using your former name consistently, and request that it be changed on all your personal records. In other states, you’ll need to complete some paperwork and get a court order to prove your name change. Check with your local court clerk or visit the court’s website for more information.
Traditionally, after divorce, courts ruled that a father had an automatic right to have his child keep his last name if he continued to actively perform his parental role. Although there is still some bias in this direction, it is no longer strictly true.
Now a child's name may be changed by court petition when it is clearly in the best interest of the child to do so. When deciding whether to grant a name change, courts consider many factors, such as the length of time the father's name has been used, the strength of the mother-child relationship, and the need of the child to identify with a new family unit (if the change involves remarriage). The courts must balance these factors against the strength and importance of the father-child relationship. What this all boils down to is that it's up to a judge to decide which name is in the child's best interest.
Keep in mind that, even if you do change your children's last name, you won't be changing the legally recognized identity of their father. Nor will a name change affect the rights or duties of either parent regarding visitation, child support, or rights of inheritance. Changes such as these occur only if the parental roles are altered by court order -- for example, a new custody decree or a legal stepparent adoption.