In my opinion, most people (typically women) decide whether or not to change their name to a maiden name at the actual time of the divorce proceeding, if not sooner. The decision is a largely personal one and in my years of practice I’ve heard the gamut of reasons as to why to or not to change from the married name. N.J.S.A. 2A:34-21 is the statute that governs legal name changes in New Jersey.
Rarely do we see the courts chime in on this issue, because generally it is quite mundane. However, there is a published trial court opinion stemming out of Passaic County which gives guidance on when is the appropriate time to make a request for a name change and suggests timing may be everything when it comes to this issue.
In the matter of Leggio v. Leggio, Mrs. Leggio filed an application with the family court seeking to change her name. She provided the court with a copy of her dual judgment of divorce from bed and board entered in 2004. Ten years later, she sought to change her name.
A critical point in this matter that cannot be overlooked is the distinction between a divorce from bed and board and a divorce. New Jersey does not recognize legal separation for married people. However, a divorce from bed and board has been considered by many to be the closest available option to a legal separation. Those who enter into a divorce from bed and board are not legally divorced and their marital bond is not dissolved. As an example, they can still remain on their spouse’s health and/or car insurance. In order to become ‘divorced,’ in the true sense of the word, following a divorce from bed and board, one party must file an application with the court seeking to convert their judgment into a final judgment of divorce.
The Leggios never did that. So, when Mrs. Leggio came to the court seeking to change her name, the court looked to the statute which explicitly states, “The court, upon or after granting a divorce from the bonds of matrimony to either spouse…may allow either spouse…to resume any name used by the spouse…before the marriage…, or to assume any surname.” This very language gives our courts authority to grant a name change incident to or after a “divorce from the bonds of matrimony.” Because a divorce from bed and board does not dissolve the bonds of matrimony, the court held that a name change could not be granted unless and until a final judgment of divorce is entered. The mere passage of time is insufficient.