Name Changes in Florida Marriage and Divorce

Many clients have asked when and how a spouse’s name legally changes under Florida law upon taking marriage vows, filing the marriage certificate, or seeking divorce.

Most Florida residents received their name on their birth certificate. See Smithers v. Smithers, 804 So. 2d 489, 491 (Fla. 4th DCA 1991). Florida case law recognizes a person's name is simply a group of words that distinguish or designate one person from others. See Levey v. Dijols, 990 So. 2d 688, 693 (Fla. 4th DCA 2008) (citing Black's Law Dictionary and Merriam-Webster dictionary).

Traditionally, a person could adopt another name at will, absent a fraudulent, criminal, or wrongful purpose. See Isom v. Tenth Circuit, 437 So. 2d 732, 733 (Fla. 2d DCA 1983). In English speaking countries, it was customary that a wife adopts her husband's surname in place of the surname of her father. Davis v. Roos, 326 So. 2d 226, 228 (Fla. 1st DCA 1976).

The law today is clear that a wife does not adopt her husband's surname automatically upon marriage. Roos, 326 So. 2d at 227. To the contrary, a woman's right to maitain her birth name after marriage is well established under Florida law. See Pilch v. Pilch, 447 So. 2d 989, 989 (Fla. 1st DCA 1984). The same rules would apply to a same sex spouse.

Today, when a spouse chooses to adopt another spouse’s name after marriage, that becomes her name under the common law. Smithers v. Smithers, 804 So. 2d 489, 492 (Fla. 4th DCA 2001). This normally includes changing a driver's license, social security card, and other forms of identification. In some cases, a spouse might use the other’s spouse’s surname professionally and on government identification, while also continuing to use their birth name. See Levey v. Dijols, 990 So. 2d 688, 691 (Fla. 4th DCA 2008).

The Florida Legislature adopted a name change statute primarily to add clarity and aid the right to obtain a name change at will, giving the advantage of a public record to document the change. See Isom, 437 So. 2d at 492. Notably, the Florida name change statute expressly states that the statutory requirements do not apply to any change of name in proceedings for dissolution of marriage. See Fla. Stat. § 68.07.

In divorce, a spouse who changed their name in connection with the marriage has the recognized right to return to their birth name, even if that name differs from her children. See Pilch, 447 So. 2d at 990. While a spouse may request their name to be changed, no one else may request a name change for another person. See Warfield v. Warfield, 661 So. 2d 924, 926 (Fla. 4th DCA 1995). Absent fraud, courts do not have the authority to order a spouse’s name to be changed back to their birth name without their consent, even if the other spouse demands it. See Smithers, 804 So. 2d at 491.

If you have questions about a Florida name change or dissolution of marriage, please contact one of our experienced family law attorneys.

Navigating the Pretrial Process

What is pretrial in family law?

After filing for divorce, exchanging required documents and other discovery, and attending mediation, the next step is typically scheduling trial. Many judges require that the parties attend a pretrial conference or pretrial hearing before setting a trial date. A pretrial conference is an important step in any family law case, because it presents the opportunity to present to the court that your case is ready for trial. Many times, the court may order the parties to mediation, which provides another chance to settle the case before incurring the cost of trial, which is typically the most expensive and time-consuming stage of the case. If you are in the process of getting a divorce in Florida, you should consult the experienced divorce attorneys at Mockler Leiner Law to ensure you are doing what is right for your case.

What happens at a pretrial conference?

A pretrial conference serves as a meeting between both parties, their counsel, and the court. This hearing is set to present the status of the case, including identifying the key issues, underlying facts, and both parties’ requests for relief. While pretrial primarily addresses the logistical and procedural matters of the case, it also allows the judge to get a feel for the details of the case. What do the parties really disagree about? How many alimony is being sought? What are the different types of relief requested?

During the conference, each party’s attorney will address the judge, introducing the key issues and proposing where their side stands in terms of readiness for trial. While it is uncommon for clients to play any significant role in the pretrial conference, the court may ask you to discuss what you are seeking. If this happens, you want to ensure you are prepared. After both attorneys have presented their sides, the judge then decides on how to proceed. This depends on what issues remain unresolved and whether additional time or discovery is needed. The court may also consider whether a referral to mediation will serve as an effective tool for settlement and possibly resolve the case. The judge may even provide you some insight on the benefits of settlement and what you might expect at trial. This often includes a speech about keeping your finances and parenting decisions in your own hands, as opposed to turning those decisions over to someone less familiar with the details of your family situation. Ultimately, this input from the judge may be crucial to planning your litigation strategy. The parties need to decide whether continuing with trial is advantageous and whether the case is ready for trial.

What if we do not settle?

While many cases do settle following the pretrial conference, this is not always the case. Depending on the facts of your specific case, you may not have a choice, especially where there is no settlement offer that protects your interests or your children. The settlement offer may also depend on whether your attorney has the tools to get the a favorable result. Working with an experienced family law attorney is crucial to the outcome of your case. Your attorney will be able to anticipate the legal matters necessary to advance your case, advocate for your interests, and achieve the right result for you.

What happens after pretrial?

Following the pretrial hearing, your attorney will review the court’s pretrial order and the work that needs to be done before proceeding to a final hearing. Your attorney may also confer with the opposing party to see if there is a mutually agreeable settlement that can be reached. However, if no resolution is available, your case may continue to trial, and you will have numerous deadlines for exchanging more discovery, deposing witnesses, disclosing witnesses, and doing all the work necessary to prepare for trial.

Mockler Leiner Law, P.A.

The skilled attorneys at Mockler Leiner Law have extensive experience litigating contested divorce cases. Contact us today to ensure you are represented by an attorney you trust at your pretrial conference.

Schedule a consultation