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AGO 1985 No. 10 - June 27, 1985
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COURTS ‑- NAMES ‑- LICENSES ‑- DIVORCE ‑- CHANGE OF NAME FOLLOWING DISSOLUTION OF MARRIAGE

 It is not legally necessary, in order for a previously married woman to change her last name following a dissolution of marriage, for her to seek and obtain a court order so changing her name pursuant to RCW 4.24.130 or RCW 26.09.150.

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                                                                    June 27, 1985

 Honorable Nancy Rust
State Representative, 1st District
18747 Ridgefield Road N.W.
Seattle, Washington 98177

Cite as:  AGO 1985 No. 10                                                                                                                

 Dear Representative Rust:

            By recent letter you requested our opinion on a question which we paraphrase as follows:

             In order for a previously married woman to change her last name following a dissolution of marriage, is it legally necessary for her to seek and obtain a court order to that effect pursuant to RCW 4.24.130 or RCW 26.09.150?

             We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             RCW 4.24.130, which you cited in your letter, is derived from (and codifies a section of) the Washington Territorial Code of 1881.  The full text of that statute reads as follows:

             "Any person desiring a change of his name or that of his child or ward,may apply therefor to the superior court of the county in which he resides, by petition setting forth the reasons for such change; thereupon such court in its discretion may order a change of the name and  [[Orig. Op. Page 2]] thenceforth the new name shall be in place of the former."  [Emphasis supplied].

             Also to be noted, although not cited in your letter, is RCW 26.09.150 which codifies § 15, chapter 157, Laws of 1973, 1st Ex. Sess. and relates to the entry of a decree of dissolution of marriage or declaration of invalidity.  The final paragraph of that statute reads as follows:

             "Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order a former name restored and may, on motion of either party, for just and reasonable cause, order the wife to assume a name other than that of the husband."

             As we understand it, based on informal advice from this office the State Department of Licensing (DOL) recently refused to issue a driver's license to a formerly married woman in a name other than her married name without a court order, under one or the other of those two statutes, legally establishing the new last name she now desires to use.  As you also have noted, however, this office in a formal opinion dated January 30, 1928, concluded as follows:

             "In the matter of the choice of a name for a person, it is fundamental law that any person may use any name he sees fit, provided that the use thereof is not with the intent to defraud.  The custom of persons taking names from their male parent is merely a custom and is not binding upon anyone, and the same may be said of the custom of a woman taking her husbands's name.  In the matter of the choice of a name the individual has absolute liberty provided that a name is not assumed for the purpose of committing a fraud."  [Emphasis supplied].

             No mention was made of RCW 4.24.130 (then codified as RRS § 998) in that 1928 opinion.  Nor, likewise, was any mention made of either that statute or RCW 26.09.150,supra (enacted in 1973) in the recent case ofDoe v. Dunning, 87 Wn.2d 50, 549 P.2d 1 (1976) in which the Washington Supreme Court, at page 53, set forth the same basic common law principle as follows:

             "Under well established principles of common law, a person is free to adopt and use, absent a statute to the contrary, any name that he or she sees fit so long as it is not done for any fraudulent purposes and does not  [[Orig. Op. Page 3]] infringe upon the rights of others. . . .  This common-law right applies as well to the surnames of married women.  While it may be that it is considered customary for a woman to take her husband's surname upon marriage, it is custom only and not a legal requirement. . . ." [Emphasis supplied].

             In our opinion the point, quite simply, is that both RCW 4.24.130 and RCW 26.09.150 are, by their own express terms, permissive and not mandatory.  Under the former a person desiring to change his or her name (or that of his or her child or ward)may apply therefor to the superior court of the county in which he or she resides.  In turn, by following that procedure the individual can obtain an official court order attesting to the particular name change involved.  But the statute does not purport to require that this formal procedure be followed in order to effectuate a change in name.  Therefore, RCW 4.24.130 is not a "statute to the contrary" within the purview of the common law rule.

             We reach the same conclusion with respect to RCW 26.09.150, supra.  We note, of course, that the second part of that provision is in derogation of the common law rule; i.e., even against her wishes a woman whose marriage is dissolved or declared invalid may, for just and reasonable cause, be ordered to assume a name other than that of her former husband.  The first part of the statute, on the other hand, is like RCW 4.24.130,supra, in the sense that it enables a person (here, specifically, a wife whose marriage is dissolved or declared invalid) to obtain a court order changing her name‑-in this instance, restoring her former name.  But the statute does not purport to require the woman to take that action at the time of her dissolution of marriage or forever after be barred from taking and using either her former name or some other name of her choosing.  Compare,Ogle v. Circuit Court, 89 S.D. 18, 227 N.W.2d 621 (1975).  And therefore, on that count, RCW 26.09.150 (like RCW 4.24.130) is not in derogation of the common law rule so as to affect our answer to your question.

             A succinct summary of these two points of law appears in 57 Am.Jur.2d, Name, § 11 (p. 282) as follows:

             "In most jurisdictions, a change of one's name is regulated by statutes which prescribe the proceedings by which such change is to be accomplished.  Such statutes, it is held, merely affirm, and are in aid of, the common-law rule.  They do not repeal the common law by implication or otherwise, but afford an additional method  [[Orig. Op. Page 4]] of effecting a change of name.  The statutory method of changing one's name has distinct advantages: it is speedy and definite, and provides a record by which the change of name is definitely and specifically established and easily proved even after the death of all contemporaneous witnesses."  [Emphasis supplied]

             We believe both points thus made to be well taken.  Utilization of the procedures set forth in RCW 4.24.130 and/or RCW 26.09.150 to obtain a court order reflecting a name change has much to recommend it in terms of definiteness and certainty.  But those statutes do not repeal the common law and thus they merely afford an additional method of effecting a change of name.  We therefore answer your question, as above stated, in the negative; i.e., it is not legally necessary, in order for a previously married woman to change her last name following a dissolution of marriage, for her to seek and obtain a court order so changing her name pursuant to RCW 4.24.130 or RCW 26.09.150.1/

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Senior Deputy Attorney General

                                                         ***   FOOTNOTES   ***

 1/In so concluding we limit ourselves to the question thus posed.  A different question than that is whether an agency (such as DOL in this case) may require disclosure and proof of names formerly used by an applicant for licensure when such information is related to an authorized agency function.  We believe that an agency may do so.  Here, two examples of a need for that information by the Department of Licensing are (1) when issuing a driver's license so as to be able to fulfill its obligations under RCW 46.20.171 and RCW 46.52.120 to maintain driving records for individuals; and (2) when issuing identicards so as to obtain evidence which "positively proves identity" as required by RCW 46.20.117.

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