Changing Your Name in Virginia Divorce

For lots of women, one of the most important parts of the divorce process is the name change.  Especially when there aren’t children born during the marriage (and sometimes even when there are) one of the most important parts of the process (and certainly one of the most therapeutic and significant parts) is the name change order.
You don’t have to get your name changed because you’re getting divorced.  And, on the other hand, if you want your name changed, you don’t have to wait until you’re divorced to do it.  Anyone can get their name changed at any time, and it’s especially easy if you’re going back to a previous name (like a maiden name).  Making up a new name is a little more difficult, but still possible.

When do you change your name in a divorce?

I know you’re probably all excited about getting your name back, and you should be.  It’s pretty important, and it will go a long way towards making you feel like you’ve gotten rid of the negative in your life and gone back to something better—something that’s more “you.”  You’re eager to cut those ties, and move on with your life!  But…hold your horses, as my mom would say.
When our clients want name changes, we file a name change affidavit with the rest of the stuff at the very end of the process—right before the final divorce decree is entered by the judge.  When we file the lawsuit and for the entirety of the case, our clients are known by their married names.
When you file a lawsuit, you file using your legal name, and your legal name (and the opposing party’s  name) are used to categorize the case in the court’s records.  At the top of every document you file with the court (pleadings, we call them), your names appear.  The fancy heading that appears at the top of your document is called the “style” of the case.  Here’s what it would look like:
VIRGINIA:    IN THE CIRCUIT COURT OF THE CITY OF

Sally L. Smith,
Plaintiff,

v.                        CASE NO.: CL-1234

Michael R. Smith,
Defendant.

So, for every document you file, like your complaint, your final divorce decree, and any motions, orders, affidavits, or other documents you file in connection with your divorce action, this heading will appear.  This heading is super important, because it helps the court organize and process your case.  It’s also the official name for your case.  In a divorce, since the parties are married, the cases usually have the same name on either side (like, in my fictional case here, the case name would be Smith v. Smith).  (Though, of course, that’s not always the case, if, for example, the wife never took the husband’s name.)

Let’s pretend that this fictional case is your case.  Your case is Smith v. Smith because, when you filed your case, you were Sally Smith.  If you change your name at the end of the process, you can go back to Sally Jones and it doesn’t affect your case—because it’s finished.  Your final divorce decree is signed, concluding the Smith v. Smith case, and then you officially become Sally Jones.  No more action is required in your case, so it doesn’t matter that your name is now something different.  The case is closed, indexed, and categorized in the court’s archives.

Technically, you can change your name at any time—either before or after your divorce is finalized.  Still, you might not want to do it that way.

    If you change your name AFTER your divorce decree is entered

It’s much easier to change your name along with your divorce action than it is to go back and change it afterwards.  Since you’ve already got an open case, it’s just a matter of filing one extra piece of paperwork (a name change affidavit) and paying a nominal fee to the circuit court (the fee varies from court to court, but it’s usually $25 or so).

After your case is closed, you’ll have to file another case.  It involves filing a petition, and possibly having a hearing.  You’ll also have to pay to file your case, which typically (though you should follow up with the circuit court clerk’s office in your jurisdiction just to make sure) costs more than if you do it along with your divorce action—it’s also considerably more paperwork this way.

Why?  Well, legally you can get your name changed for any legitimate reason but, if you’re randomly changing your name as opposed to changing it along with your divorce paperwork, the court does a little more digging into your reasoning.  Lots of people, over the course of history, have tried to change their name for all sorts of bad reasons—like, to defraud creditors.  It’s just a little more involved this way, because the court wants to make sure you’re doing it for a proper purpose.  Still, it’s possible—so if you just want to wait and see how you feel later on and then make a decision, that’s totally fine.  There’s no reason you can’t get divorced after your divorce is finalized, I only tell you about the process in case doing it in the easiest way possible is important to you.

    If you change your name BEFORE your divorce decree is entered

This is where you’ll run in to trouble.  Of course, divorce cases can move forward in a couple of different ways, and what really matters is when you file for divorce.

If yours is a no fault divorce, you won’t file for divorce until the end of your statutorily required one year of separation (or six months, if you have both a signed separation agreement and no minor children).  If your divorce is fault based, on the other hand, you’ll file for divorce earlier in the process.  (Why?  Well, you have to have grounds in order to file for divorce in Virginia.  You have fault based grounds as soon as they occur, but no fault grounds are based exclusively on the length of your legal separation, but don’t exist until you’ve been separated for the full statutory period.)

After you’ve filed for divorce, whether your divorce is a fault or no fault divorce, you should wait to change your name until your final divorce decree is entered.  If you change it after you file but before your final divorce decree is entered, you have an annoying problem to correct.  Like I said, you have the “style” of the case, which is based off of the names you used when you filed.  If you change your name, the style is no longer correct, and you have to change it.

How?  Well, you should probably check up on the rules in your local circuit court, but, when this has come up in my practice (admittedly, though, it hasn’t come up a lot, because most of the women I see have an attorney and their attorney protects them from these types of silly mistakes), typically the person who changed his or her name has to file a motion to change the style of the case.  It’s inefficient and time consuming and, maybe even more importantly, if you’re a pro se litigant (a person who is trying to do it on your own without the help of an attorney), it’s intimidating!  You’ll have to go to court and make an argument in front of a judge, and that’s just no fun.

At the end of the day, you can manage your case however you see fit.  Change you name whenever you want, but do it purposefully and with knowledge.  Understand what’s involved, and make the best choice for you from all the available information.  In my opinion, it’s often far better to wait until after your final divorce decree is entered—but it’s up to you.
For more information about name changes, or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.

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