American women have traditionally taken their husbands’ last names as their own when they marry. Although we are now approaching true gender equality in this country, nearly all married women here still bear their husbands’ last names or at least a hyphenated last name containing their husbands’ surnames.
When a couple divorces in Arizona, it is the wife’s choice whether to retain her married name or to be restored to her maiden/former name. A husband cannot force his divorcing wife to release his surname and take back her former name. Likewise, he cannot object to the name restoration and force his wife to keep his name. The husband’s position on the name change is irrelevant.
In long-term marriages involving children, many divorcing women choose to retain their married names so they will have the same last name as their children. A woman wishing to go back to her former name can have the name change done as part of the divorce. A.R.S. Section 25-325(C). The statute does not require that the wife go back to the name she had just before entering the marriage. She is allowed to have “a” former name restored. In the case of a second marriage ending in divorce, for example, where the wife took her first husband’s surname and now has her second husband’s surname, the wife may choose to be restored to her maiden name or to her first husband’s surname.
The name restoration statute is drafted to be gender neutral. It states that a “party” (not the “wife”) may request to be restored to a former name. Although it is extraordinarily rare (I have only seen it twice), after getting married some husbands take their wives’ surnames as their own or take a hyphenated version containing their wives’ surnames. Husbands too may request restoration of a former name as part of a divorce.
Most of the time, the name restoration is done as part of the final decree of dissolution of marriage. Under the statute, however, the name change can be made “at any time before the signing of the decree of dissolution” by the court. Id. If a person doesn’t want to wait for the divorce to be finalized to have her former name restored, a simple motion filed with the court while the case is pending is sufficient. Once the divorce decree is signed by the judge, however, it is too late. In that case, the name change would have to be accomplished by a separate civil case and not as part of the divorce case.
Copyright © 2016 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.