I just want my name back, particularly since I never changed it in the first place.
February 3, 2011 3:07 PM   Subscribe

I never changed my name after I got married, but I signed my name with my husband's last name on several legal documents. Now we're getting divorced, and my lawyer tells me that I have to request in my MDA that my name be restored to my maiden name. I live in Tennessee. Help me understand this please!

I signed my name with my husband's last name on the deed to our home, for example. And all of my divorce paperwork (parenting plan and dissolution agreement) has used my husband's last name with my first name as well. I have mentioned this to my attorney several times and told her that I was concerned because that is not my legal name, but she assures me that it's fine and keeps using it.

This week, I got an email from her telling me that we need to request in my MDA that my name be restored to my maiden name, and she added that we have a very conservative judge who may not allow me to return to my maiden name because my husband and I have a minor child together and she believes that we should all have the same last name (I mean, really??? This sounds crazy to me, but this IS the south...) I reminded her again that this is not my legal name, but she tells me I have to do it because my name is this way on legal documents.

Can anyone tell me if this is typical? How can a judge tell me that I can't use my legal name and that I have to use my ex husband's name? And if a judge wouldn't do that, then why is my lawyer so insistent on including it in the dissolution agreement? And this might be silly, but does the fact that all of my divorce paperwork is in a name that is not my legal name make it somehow null and void?

Thanks for any help!
posted by mudlark to Law & Government (19 answers total)
Every state in the US has completely different laws about name-changes and marriage. If you don't trust your lawyer's opinion on this, you need to ask another Tennessee attorney, not a bunch of people from different states and countries.

Seriously, anything anyone who isn't from Tennessee or admitted to that state's bar has to say on this topic is irrelevant to you. I could tell you what Massachusetts law is on this, but I might as well be making farting noises with my lips for all the good it will do you.
posted by Sidhedevil at 3:19 PM on February 3, 2011 [5 favorites]

Response by poster: Yes, I know this varies from state to state. That is why I specified that I am in Tennessee. I am hoping to hear from someone who has experienced this in my state or who is familiar with Tennessee law.
posted by mudlark at 3:38 PM on February 3, 2011

Response by poster: Also, I found your answer to be unnecessarily condescending. Maybe I should have specified more clearly that I'd like to hear from anyone who can help me.
posted by mudlark at 3:42 PM on February 3, 2011 [1 favorite]

I don't know anything about law or Tennessee law specifically, but I do recall that there's often something to be said for common law names and related changes.

This situation
(which is otherwise not like yours in terms of marriage and location) involved someone changing a name that they had been using more or less as a legal or common name for quite a while. Perhaps you might find it useful in terms of certain aspects to think about.
posted by Madamina at 3:42 PM on February 3, 2011

Isn't your lawyer a Tennessee lawyer? If you don't trust her opinion, you need to get another Tennessee lawyer.
posted by vincele at 3:46 PM on February 3, 2011 [3 favorites]

Response by poster: I don't entirely trust my lawyer's advice but I can't change lawyers. I'd just like to know if anyone here can corroborate this information or add to it in any way.
posted by mudlark at 3:50 PM on February 3, 2011

I didn't think sidhedevil's answer was condescending. I think she was just trying to warn you to be careful of any replies you receive here, particularly if they are not from Tennessee attorneys. People give a lot of advice here even when they actually know nothing about the subject. I know I do. :-)
posted by shoesietart at 3:50 PM on February 3, 2011 [7 favorites]

Also, I found your answer to be unnecessarily condescending. Maybe I should have specified more clearly that I'd like to hear from anyone who can help me.

Sorry, I absolutely wasn't trying to be condescending to you; many people do not know how greatly these laws differ from state to state, and I feared that people would waste your time by citing laws from their own experiences in other states.

On another board I participate in frequently, someone asked a similar question and got page after page of opinions from people in different US states and indeed in different countries. I don't know how many MeFi folks there are from Tennessee, and I don't know how many of that number have had analogous experiences to yours, so I hope that I am wrong about how many of the answers here will be useful.

If you distrust your attorney's opinion on a matter of law, seeking a second opinion from another attorney who is admitted to the same state's bar in the same areas of practice really is the best approach.
posted by Sidhedevil at 3:52 PM on February 3, 2011

You also don't have to change attorneys to seek a second opinion; you can schedule a time-limited consultation with a second attorney.
posted by Sidhedevil at 3:53 PM on February 3, 2011

I don't entirely trust my lawyer's advice but I can't change lawyers.

You don't have to change lawyers to seek another lawyer's advice on this topic alone.
posted by brainmouse at 3:54 PM on February 3, 2011 [1 favorite]

Response by poster: Thanks, Sidhedevil. Sorry if I got too snippy. This whole situation is very stressful for me;
I need this divorce settled as soon as possible so I can get my settlement because I am flat broke, and it's been mistake after mistake from my attorney. Very frustrating. Now, I'm so close to the end and I'm hearing this and it sounds really odd to me, like maybe it's another piece of wrong information my attorney. I know I can talk to another attorney about it, but I really can't afford to pay someone very much at all right now. I was just hoping that I'd luck out and someone who understands this particular situation could help me.
posted by mudlark at 4:19 PM on February 3, 2011

in oklahoma, as soon as i started using my husband's last name after we were married, it became my last name. i still have to get identifications and such changed so everything matches and some national companies don't recognize it as my name without the documents changed, but according to the state of oklahoma, i'm mrs. silents, not ms. nadawi. if we were to get divorced, even if i never change my identification cards, i'd still have to go through a name change to revert back to my maiden name.

now, yes, i realize i said oklahoma and not tennessee, but i just tell you my story to show that even though it sounds crazy, it might be true.
posted by nadawi at 4:59 PM on February 3, 2011

IANAL but I was born in Tennessee, married (and subsequently divorced) in Tennessee; spouse was a law professor fond of quoting Dickens', "The law is an ass and an idiot." As I understand the way he explained it to me, the name you were born with is your name, the name you used before you married is your name, your husband's name is also your name, the name on property records is your name--the governing principle is that you must be adequately identified for the purpose at hand and must not conceal your identity in order to evade or defraud. The term "legal name" will be whatever identifies you according to the rules of whatever recording body you're dealing with. "What is your name," is a question properly answered after considering who's asking and why. (This is disproportionately a problem for women rather than men and Tennessee is not fashion forward with regard to the law.)

I wish you well. You will probably run into the hangover of this spousal surname for years to come. If requesting that your maiden name be restored makes the judge more amenable to getting on with it, by all means, go ahead, but bear in mind you don't actually need the judge's permission to use the name you've always used excepting only those times you had to conform to the rules of some recording body--or society. Nobody took it away from you and you don't need to have it given back, even if the judge fancies making a little statement officially severing you from your husband's name. (In Louisiana, all past husbands living or dead are shown on a woman's property deed, a remnant of the Napoleonic Code.) After all is said and done, your name is pretty much what you say it is.
posted by Anitanola at 6:27 PM on February 3, 2011 [1 favorite]

Maybe you should ask your attorney this: if I leave the name-change thing out of the divorce papers, what are the consequences if I use my maiden name in the future? It seems to me that if she isn't able to name any real-world consequences, then you might just tell her that you appreciate her advice but you would rather leave this issue out of the papers. On the other hand, if there are serious consequences, then you may have a different view.

My best guess is that there will be few or no real-world consequences -- after all, you signed stuff with your husband's name for years without and formal legal name change. And how many people will ask to see your divorce papers when you are signing something in the future? Perhaps it would be an issue with formal identification documents, like your passport and driver's license -- I don't know -- but it sounds like those documents might already be in your "maiden" name anyway. But that's all guessing -- ask the lawyer about the practical consequences.
posted by Mid at 6:55 PM on February 3, 2011

Is there a down-side to putting the name change in the divorce papers?
posted by k8to at 7:11 PM on February 3, 2011

Her lawyer says the judge might say no.
posted by Mid at 7:20 PM on February 3, 2011

nthing the suggestions to get an opinion from another TN attorney. I supposedly had really good representation for my divorce, but learned (painfully) soon after everything was settled that she was ignorant in certain matters and gave me bad advice that cost me dearly.

Get that second opinion before it's too late. Good luck.
posted by walleeguy at 9:15 PM on February 3, 2011

If your attorney is making mistake after mistake, that's all the more reason for you to seek another opinion. I know it will cost more money than you think you have right now, but it will cost you way more in the long run to clean up the mess made by a less-than-competent lawyer. WAY more.

You deserve to have things done right, especially now. It's not a luxury; it's what's right.
posted by Madamina at 8:08 AM on February 4, 2011

This really sounds irritating. I'd be tempted to put in a call to your current attorney to see if you can get any outstanding bills waived, and find someone else.

Speaking from experience, it's important to get any name/identity issues nailed down. I played around with different names for quite a while under the assumption that if you are who you say you are, it ought to work out. I even had a certain amount of paperwork drawn up by lawyers and, in one case, a judge. Then I let my passport lapse and found out what a world of hurt having assorted names can bring. So for heaven's sake, during or after the divorce, make sure you have sufficient ID, copies of birth certificates and all that, and put them in a safe deposit box.
posted by BibiRose at 9:05 AM on February 4, 2011

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