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HOW TO CHANGE YOUR NAME OR YOUR CHILD’S NAME

OVERVIEW

Anyone in the State of New Jersey can change their name, or their child’s name, at any time.

This section of the MNJD Guide covers how to change your name and how to change your child’s name in the context of a New Jersey divorce.

CHANGE OF SPOUSE’S NAME ALLOWED WITHOUT COURT ORDER

An adult in the State of New Jersey can change his or her name without judicial approval and without a public record of the change. You do not need a Court Order to do so. By law, you’re allowed to change your name just by starting to use another name.

“Absent a criminal or fraudulent purpose, an adult can ‘legally and properly change his or her name at will and without need of judicial approval simply by using the desired name in ordinary life.'” [In re Zahn, 424 N.J. Super. 231 (App. Div. 2012).]

Nevertheless, for practical reasons (e.g., driver’s license, social security), it is often important to have a formal court order recognizing your name change.

STATUTE GOVERNING NAME CHANGES FOR SPOUSES IN DIVORCE

To resume your unmarried name (or to assume any other name), all you generally need to do is ask. There are two statutes governing requests to change your name. The first is general, [N.J.S.A. 2A:52-1.], and the second relates specifically to a name change in the context of a divorce. [N.J.S.A. 2A:34-21.]

“The court, upon or after granting a divorce from the bonds of matrimony to either spouse or dissolution of a civil union to either partner in a civil union couple, may allow either spouse or partner in a civil union couple to resume any name used by the spouse or partner in a civil union couple before the marriage or civil union, or to assume any surname.” [N.J.S.A. 2A:34-21.]

The request to change your name should, generally, be set forth in your Complaint for Divorce, but the statute does not establish any specific time limit for the request to be filed and has been interpreted broadly.

For example, a former spouse who failed to file a pleading seeking a name change under the statute should not be barred from filing a motion with consent at the divorce hearing to amend or add to her pleadings to effectuate the name change. Indeed, the Court held that the motion should ordinarily be granted absent some contrary reason. [Cimiluca v. Cimiluca, 245 N.J. Super. 149 (App. Div. 1990).]

Further, in another case, the Trial Court held that a spouse may apply to resume her maiden name at any time after the Court grants a judgment of divorce and allowed a name change requested fourteen years after the divorce became final. [Olevich v. Olevich, 258 N.J. Super. 344 (Ch. Div. 1992).]

The general name change statute, which governs requests unrelated to divorce, provides as follows:

“Any person may institute an action in Superior Court, for authority to assume another name. The complaint for a change of name shall be accompanied by a sworn affidavit stating the applicant’s name, date of birth, social security number, whether or not the applicant has ever been convicted of a crime, and whether any criminal charges are pending against him and, if such convictions or pending charges exist, shall provide such details in connection therewith sufficient to readily identify the matter referred to. The sworn affidavit shall also recite that the action for a change of name is 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 shall serve a copy of the complaint and affidavit upon any State or county prosecuting authority responsible for the prosecution of any pending charges. A person commits a crime of the fourth degree if he knowingly gives or causes to be given false information under this section.” [N.J.S.A. 2A:52-1.]

Although these requirements are not specifically included in the divorce-related name change statute (N.J.S.A. 2A:34-21, which is discussed above), it is wise to meet these requirements anyway even when applying for a name change during your divorce.

“Where … (1) a party to a final judgment of divorce seeks to assume a new surname at or subsequent to entry of that judgment, (2) that party certifies to the informational requirements of the name change statute, N.J.S.A. 2A:52-1, (3) the comprehensive record then before the court contains no basis for any factual finding contrary thereto (indeed, contains more information than compliance with the notice requirements of N.J.S.A. 2A:52-1 and R. 4:72-3 would yield), and (4) the party articulates a credible and lawful purpose for assumption of that particular surname, the court may properly relax the publication requirement of R. 4:72-3 and grant the name change pursuant to N.J.S.A. 2A:34-21, the constructive notice requirement of N.J.S.A. 2A:52-1 notwithstanding. Pendency of criminal charges against the applicant requires actual notice to the law enforcement authority responsible for prosecution thereof and reasonable opportunity to respond prior to adjudication of the name change application. Subject to this caveat, however, applications to assume a new surname, in the context of these circumstances, are properly granted contemporaneous to the court’s ascertainment of lawful purpose on the part of the applicant.” [Raubar v. Raubar, 315 N.J. Super. 353 (Law Div. 1998).]

STATUTE GOVERNING NAME CHANGES FOR ADULTS GENERALLY

Even outside the divorce context, a person is free to assume any name he or she desires. There are, however, a few requirements. Specifically, the statute governing non-matrimonial name changes provides as follows:

“Any person may institute an action in Superior Court, for authority to assume another name. The complaint for a change of name shall be accompanied by a sworn affidavit stating the applicant’s name, date of birth, social security number, whether or not the applicant has ever been convicted of a crime, and whether any criminal charges are pending against him and, if such convictions or pending charges exist, shall provide such details in connection therewith sufficient to readily identify the matter referred to. The sworn affidavit shall also recite that the action for a change of name is 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 shall serve a copy of the complaint and affidavit upon any State or county prosecuting authority responsible for the prosecution of any pending charges. A person commits a crime of the fourth degree if he knowingly gives or causes to be given false information under this section.” [N.J.S.A. 2A:52-1.]

CHANGING A CHILD’S NAME AGREED UPON AT BIRTH

When seeking to change a child’s last name, you can either file a complaint in the Law Division or a motion in the Family Part under an existing docket. [Emma v. Emma, 424 N.J. Super. 36 (App. Div. 2012).]

When the parents agree upon a child’s name at birth (regardless of whether they were married at the time), there is no presumption in favor of the preference of the primary custodial parent thereafter.

“[I]n renaming disputes between parents who agreed on a surname at birth but find themselves later in a dispute over whether to alter the surname, the proper standard to apply is the best interests of the child. The parents in such a dispute should be on equal footing; neither parent should have a superior right. Therefore, we further hold that neither parent should benefit from a presumption in favor of his or her choice of names.” [Emma v. Emma, 215 N.J. 197 (2013).]

The parent seeking the change bears the burden of proof by a preponderance of the evidence.

“When parents have agreed on a name at birth, the parent seeking the name change in a subsequent dispute must bear the burden of showing by a preponderance of the evidence that the name change is in the child’s best interest.” [Emma v. Emma, 215 N.J. 197 (2013).]

It does not matter whether the parents were married at the time of the child’s birth. Instead, the proper focus is whether the child’s name was agreed upon by both parents at birth.

“The best-interests-of-the-child test applies regardless of the label attached to the parents’ relationship at the time of the child’s birth. Whether the parents are married, in a civil union, unmarried, or in a short-term or long-term relationship, the relevant starting point is whether the parents agreed on a surname at birth.” [Emma v. Emma, 215 N.J. 197 (2013).]

Generally, parents who share joint legal custody should share equal rights over name changes.

“[T]he decision of whether to change a child’s name falls to the joint custodians to make an attempt to agree on whether to change a child’s name. Then, absent the ability to forge an agreement, the dispute may be brought to the courts. However, because joint legal custodians start with a responsibility to make decisions together, so too should they start in the court system with equal rights — without either party benefiting from a presumption in favor of his or her choice of names.” [Emma v. Emma, 215 N.J. 197 (2013).]

Nevertheless, the Court should “take[] into account special knowledge that a custodial parent may have as to the benefits and detriments to the current surname and the proposed surname in the life of the child in that parent’s custody.” So too, however, the Court should take into account special knowledge anyone else involved in the child’s life may have. Important considerations include “the views of others who can demonstrate relevant knowledge about the impact of a proposed surname change on a child, such as the non-primary custodial parent who also has developed a relationship with the child, or a teacher or other adult with a close relationship with the child. The custodial parent, while enjoying an intimate living relationship with the child, does not have the sole relevant information on the subject.” [Emma v. Evans, 215 N.J. 197 (2013).]

Name changes when parents agreed upon the child’s name at birth should be determined in the best interests of the child after consideration of the following non-exhaustive list of factors:

“1. The length of time the child has used his or her given surname.

2. Identification of the child with a particular family unit.

3. Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent.

4. The child’s preference if the child is mature enough to express a preference.

5. Parental misconduct or neglect, such as failure to provide support or maintain contact with the child.

6. Degree of community respect, or lack thereof, associated with either paternal or maternal name.

7. Improper motivation on the part of the parent seeking the name change.

8. Whether the mother has changed or intends to change her name upon remarriage.

9. Whether the child has a strong relationship with any siblings with different names.

10. Whether the surname has important ties to family heritage or ethnic identity.

11. The effect of a name change on the relationship between the child and each parent.” [Emma v. Emma, 215 N.J. 197 (2013).]

CHANGING A CHILD’S NAME NOT AGREED UPON AT BIRTH

When a parent seeks to change the name of a child, and that name was not agreed upon at birth, the issue should be decided in the best interests of the child but with a presumption in favor of the primary custodial parent’s choice.

A strong presumption was established by the New Jersey Supreme Court in a 1995 case called Gubernat v. Deremer:

“The presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child. Accordingly, we adopt a strong presumption in favor of the surname chosen by the custodial parent.” [Gubernat v. Deremer, 140 N.J. 120 (1995).]

Nevertheless, the presumption was walked back in later years:

“[W]hile a presumption in favor of the choice of the surname given by the custodial parent at birth was appropriate under the facts presented by Gubernat, we hold that in renaming disputes between parents who agreed on a surname at birth but find themselves later in a dispute over whether to alter the surname, the proper standard to apply is the best interests of the child. The parents in such a dispute should be on equal footing; neither parent should have a superior right.” [Emma v. Evans, 215 N.J. 197 (2013).]

Thus, while a presumption still exists in favor of a custodial parent’s choice when the name was not agreed upon at birth, it has been eliminated entirely when the child’s name was agreed upon at birth.

Andrew M. Shaw, Esq. - Somerville, NJ Divorce Lawyer

Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.

Focused. Accessible. Compassionate. Aggressive. 


ASSOCIATIONS & MEMBERSHIPS:

  • New Jersey State Bar Association – Family Law Section
  • New Jersey State Bar Association – Young Lawyers Division
  • Somerset County Family Law Practice Committee
  • MENSA International

BAR ADMISSIONS:

  • New Jersey State Bar
  • U.S. District Court for the District of New Jersey