May a Woman Use Her Former Surname After Divorce?

January 22, 2021 Divorce, Post-Divorce

Find out who is eligible for a name change upon divorce, how to change your name, and what your spouse can do to stop you. Also learn whether you can force your spouse to stop using your last name and what statute applies to name changes at the time of divorce.

Yes. At the time of divorce, a woman can request that the court restore her to her former surname. If she makes such a request, it will be granted. The other party cannot object or prevent her from doing so.

Likewise, if a woman wants to keep her married surname after a divorce, her husband cannot object or insist that she change it.

It is a little-known fact that the court actually has the authority to change a woman’s AND a man’s last name at the time of divorce. The relevant statute states:

767.395 Wis. Stats.: Except as provided in s. 301.47, the court upon granting a divorce, shall allow either spouse, upon request, to resume a former surname, if any.

This statute is intended to give both husbands and wives the right to resume their former surnames. This rule is necessary because at the time of marriage sometimes spouses create a new surname (for example, by hyphenating or otherwise combining their last names) and sometimes husbands take the surname of their spouse (for example in cases of gay marriage or where a husband chooses to assume his wife’s last name).

In all such instances, a party to a divorce can elect to resume a former surname at the time of divorce. The sole caveat to this is that they can only choose a last name they have legally used before. They cannot choose a new last name or a last name they have never legally used.

For example, if a woman was born with the surname “Smith” and then got married and took the surname “Johnson,” she could only revert to “Smith” upon divorce from Mr. Johnson. But if Mr. Johnson died and she got remarried to Mr. Hall, she could elect either the surname “Smith” or the surname “Johnson” upon divorce. But she could not choose to start fresh by electing her mother’s maiden name of “Wilson.” If she wanted to elect a surname she had never legally held, she could do so only by filing a formal name change proceeding.

Once a party to divorce elects a new surname, it becomes effective immediately. However, their only “proof” of that name change will be in the Judgment of Divorce which may not be received until several weeks after the final divorce hearing.

Once the Judgment of Divorce is entered by the court and received by the party, he or she can take the Judgment of Divorce to the Division of Motor Vehicles and to the Social Security Administration to obtain a new driver license or I.D. card and a new Social Security card.

These steps should be taken within a reasonable time after receiving the Judgment of Divorce because continuing to use the other party’s surname could invalidate the name change set forth in the Judgement.

If you have questions or concerns about changing your surname incidental to your divorce, please contact us for a 100% confidential consultation.

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