Many clients have asked when and how a spouse’s name legally changes under Florida law upon taking marriage vows, filing the marriage certificate, or seeking divorce.
Most Florida residents received their name on their birth certificate. See Smithers v. Smithers, 804 So. 2d 489, 491 (Fla. 4th DCA 1991). Florida case law recognizes a person's name is simply a group of words that distinguish or designate one person from others. See Levey v. Dijols, 990 So. 2d 688, 693 (Fla. 4th DCA 2008) (citing Black's Law Dictionary and Merriam-Webster dictionary).
Traditionally, a person could adopt another name at will, absent a fraudulent, criminal, or wrongful purpose. See Isom v. Tenth Circuit, 437 So. 2d 732, 733 (Fla. 2d DCA 1983). In English speaking countries, it was customary that a wife adopts her husband's surname in place of the surname of her father. Davis v. Roos, 326 So. 2d 226, 228 (Fla. 1st DCA 1976).
The law today is clear that a wife does not adopt her husband's surname automatically upon marriage. Roos, 326 So. 2d at 227. To the contrary, a woman's right to maitain her birth name after marriage is well established under Florida law. See Pilch v. Pilch, 447 So. 2d 989, 989 (Fla. 1st DCA 1984). The same rules would apply to a same sex spouse.
Today, when a spouse chooses to adopt another spouse’s name after marriage, that becomes her name under the common law. Smithers v. Smithers, 804 So. 2d 489, 492 (Fla. 4th DCA 2001). This normally includes changing a driver's license, social security card, and other forms of identification. In some cases, a spouse might use the other’s spouse’s surname professionally and on government identification, while also continuing to use their birth name. See Levey v. Dijols, 990 So. 2d 688, 691 (Fla. 4th DCA 2008).
The Florida Legislature adopted a name change statute primarily to add clarity and aid the right to obtain a name change at will, giving the advantage of a public record to document the change. See Isom, 437 So. 2d at 492. Notably, the Florida name change statute expressly states that the statutory requirements do not apply to any change of name in proceedings for dissolution of marriage. See Fla. Stat. § 68.07.
In divorce, a spouse who changed their name in connection with the marriage has the recognized right to return to their birth name, even if that name differs from her children. See Pilch, 447 So. 2d at 990. While a spouse may request their name to be changed, no one else may request a name change for another person. See Warfield v. Warfield, 661 So. 2d 924, 926 (Fla. 4th DCA 1995). Absent fraud, courts do not have the authority to order a spouse’s name to be changed back to their birth name without their consent, even if the other spouse demands it. See Smithers, 804 So. 2d at 491.
If you have questions about a Florida name change or dissolution of marriage, please contact one of our experienced family law attorneys.