I did not want to change my name when I got married in 1993, so I didn’t. But two years later, a postal clerk refused to give me the baby gift I’d come to pick up because my infant son’s last name was different from mine. The address on the package and the address on my driver’s license were identical. The baby, after a long wait in a post office line, was apoplectic. I was told I had to return to the post office with my child’s birth certificate or I could not have the package. Or any future packages sent to him or any future children, for that matter.
Fueled with frustration and postpartum hormones, I scurried down to the Social Security Administration office that same afternoon to change my name. It was as simple an act as it was rash: I handed the clerk my marriage license and a few other forms of ID, breast-fed the baby, and five minutes later I had my husband’s name in lieu of my father’s. I wasn’t thrilled about the change, and I then had to jump through the logistical hoops of notifying the DMV, the passport office, my bank, my employer, et al. But it was as easy to rationalize as it was to effectuate: For the sake of bureaucratic convenience, I was trading one man’s surname for another’s. At least I could now pick up my children’s packages at the post office and fly alone with them to foreign countries without presenting birth certificates to postal clerks and border-control agents. Right?
Twenty-two years later, I was nearly four years separated, and I tried to change my name back to its original version. I went to the DMV, where I was told I needed a divorce decree, which I didn’t yet have. The other option, the clerk said, was to petition a judge for a name change and pay a $65 fee, which, with the divorce dragging on, is what I decided to do.
“Are you still married?” asked the clerk handing out blank forms in civil court. Officially, yes, I told him, which is when he handed me a second form that my ex had to fill out and notarize to give me permission to have my name back.
“Permission?” I said, louder than might have been considered polite. “That is unbelievably backward and sexist.”
“No,” snapped the clerk, “it’s not. Men have to do it, too.”
“Right. All those men who need to change their names back from their married names to their maiden names. You must be flooded with such cases.”
The clerk said that this was to prevent either party from disappearing without a trace or kidnapping the children. That made sense, I said, for parents adopting completely new names, but I wasn’t asking to change my name to Pixie Supernova. I just wanted to restore my birth name, which was already associated with my Social Security number. But a judge would waive consent, I was told, only if I could prove that I was in danger or couldn’t find my husband. Not wanting to give my ex control over something as personal as my identity, not to mention the annoyance of being called the wrong name at doctor’s offices, banks and airline counters, was not grounds for waiving consent.
Legally, there’s no statute in my state requiring spousal consent for a name change. Lawyers familiar with name change law were not aware of such a statute in any state. But because name change is controlled by a bureaucratic process, what actually occurs in courthouses across the country on a case-by-case basis can vary wildly. “So much of what happens in this area is informal,” said Columbia Law School professor Elizabeth Emens, who’s written extensively on name change law, “which is what led me to the concept of what I called ‘desk clerk law.’ That’s law as defined by the whims or views of the person at the desk.” Such “law,” she said, “can encompass clerks inserting their normative views or just making mistakes about what the law is,” such that an official form, like the one I was handed, meant to prevent kidnappings, disappearances and fraud, gets prophylactically foisted upon everyone seeking a name change. “It doesn’t mean that the desk clerk is making the formal law,” Emens said, “but just that, effectively, for the person on the street, the desk clerk has determined their choices.”
These murky misreadings of the law by desk clerks bleed into the explanatory handouts that sit at the entrance of family court and that are written in response to the experiences of those who've been through it. In New York City, where I live, there is no mention of spousal permission for a name change in the instructions on the official state government website, except where changing minor children's names is concerned. But in the informal name change handout at the courthouse, covered in cute cartoons and created by an organization called Lift that helps families navigate the court system, there is. "If you are married," it reads, "you must attach a notarized (NO-tar-ized) statement from your husband or wife that says he or she knows about your application for a name change. If you do not want to involve your spouse, you must explain why to the court." A Catch-22, since you cannot explain to the court why you don't want to involve your spouse, or even pay the $65 processing fee, until you submit the forms, including the one for spousal consent, to the desk clerk.
Beth D. Cohen, a professor at Western New England University School of Law, studied the issue of spousal consent in Massachusetts and says mine was hardly an isolated incident. “One of the inconsistencies in the name change law is that you can take back your name as a matter of right upon divorce, but while you’re still married, you don’t have that individual right without your spouse’s consent.” This unfair application of law by those implementing it, she says, has far-reaching implications and is a violation of our fundamental rights. “While some may dismiss this as a lingering anachronism,” she added, “the requirement that a woman specifically notify or secure her husband’s permission prior to changing her name continues to inflict real present-day harms and remains an unnecessary vestige of patriarchy. Even though you can get the requirement waived, if there’s evidence of domestic abuse, it still puts the burden on the woman to come forward with evidence of domestic abuse, and that doesn’t take into account more subtle power differentials in different relationships such as control.”
Name limbo, in the United States, can take many forms. Deborah Sussman, from Phoenix, tried to reclaim her birth name after her divorce, when it should have been easy. “When I found out I had to get my ex to sign something,” she said, “I dropped it.” Now that her daughter is 19, however, “I’m gearing up to go back to the courts and try again. I know that sounds wimpy, but I don’t think most people understand how traumatizing dealing with a particularly difficult ex can be, especially when there are children involved, and you have to pick your battles.”
Kathleen Matthews, whose official name on her driver’s license is still Kathleen Matthews Schmidt, is married but simply wants her old name back, the one she still uses professionally. New Jersey, where she lives, does not require spousal consent, but, she says, the state makes it so difficult to reclaim one’s name that she, too, gave up. “Every form I’ve filled out assumes you are doing it because you are divorced and doesn’t list any other way to explain why you’re doing it.”
In Virginia, Rachel Vorona Cote was told by a clerk at the Social Security Administration that she needed a judge’s permission to reclaim her birth name, even though she showed up with her divorce decree in hand. “It’s absurd and patriarchal in the most flagrant way,” she said, “for a state to demand a woman seek explicit permission to reassume her family name.”
Women are no longer our husbands’ property. Therefore reclaiming our birth names whenever we want — be it during a marriage or after a separation or divorce — should be as easy as fetching a baby present for a child in a post office if you’re a man: wait in a queue, hand over a picture ID, and voilà, the gift is yours.
It took my ex six weeks to notarize the permission form, which I had to sheepishly and humiliatingly hand to him, in person, on a park bench between our two apartments. The exchange felt tawdry, not unlike a dime-bag drug deal in which the drug was my name and the price was my dignity (plus $65 to process the forms, $36 for six signed orders, $16.50 in subway fare, 13 lost hours, and six trips back and forth to the New York Supreme Court.)
Seven weeks after submitting the notarized permission form from my ex-husband, on my 24th wedding anniversary, I stood in front of a judge, who called me up to the bench using my birth name, which made me gasp in gratitude. She leafed through my paperwork and started to laugh. “Your stated reason for wanting to change your name should be written on a T-shirt,” she said. On the form, in a space generous enough to write a narrative, I’d printed a single, simple sentence: I JUST WANT MY NAME BACK.
I wish that its reclamation had been as simple.