Who Wears the Pants? The Difficulties Men Face When Trying to Take Their Spouse's Surname after Marriage

• Published date: 01 April 2015
• Date: 01 April 2015
• Author: Michael Slade
• DOI: http://doi.org/10.1111/fcre.12149

WHO WEARS THE PANTS? THE DIFFICULTIES MEN FACE WHEN

TRYING TO TAKE THEIR SPOUSE’S SURNAME AFTER MARRIAGE

Michael Slade

Marital laws in the majority of states currently limit or impose significant obstacles for men seeking to change their surname

upon marriage, unequal to laws regarding women who change their surname change. Women currently have the right to sign

a marriage license and take their husband’s name or some combination name. In contrast, only nine states provide men with

the same opportunity. In the remaining states, men usually must apply for a formal name change in order to legallytake their

wives’ surname. This process requires paying a substantial court filing fee, dealing with drawn out court proceedings and, in

some cases, being required to post in newspapers personal information (such as financial information) as well as the petition

to change one’s name. This Note argues that it is unconstitutional for states to have unequal procedures for men and women

to change their surnames upon marriage, resulting in a violation of men’s equal protection rights; thus, states can avoid a

judicial decision that the current name change statute is unconstitutional by simply equalizing the standard, making it gender

neutral.

Key Points for the Family Court Community:

• Women havethe statutory right to either change their last name upon mar riage or retain their maiden name in all fifty

states

• Men are provided the same procedure as women to change their surname upon marriage in only nine states

• The process for men to change their surname upon marriage in the majority of states can be time consuming,

expensive and, when all is said and done, a judge usually has unlimited discretion to decide such matters

• Men typically must adhere to formal name change procedures to change their surname after marriage, primarily by

petitioning the court

• The issue is that it is unconstitutional for states to have unequal procedures for men and women to change their

surname upon marriage in violation of husbands’ equal protection rights

• Courts should strike down statutes that discriminate against men changing their surname upon marriage or extend to

men the same rights women currently have in all states

Keywords: Intermediate Scrutiny;Marital Surname Change;EqualProtection Clause;Compelling State Interests ;Marriage

License;Marriage Statutes

I. INTRODUCTION

The headline read “Florida Accuses Man of Fraud for Taking Wife’s Name, then Backs Off.”1

In July 2011, Lazaro Sopena married Hanh Dinh in Florida. As an “act of love,” Mr. Sopena

surprised his new wife by changing his last name to Dinh.2One month later, Mr. Dinh walked

into the Florida DMV,3paid a twenty-dollar fee and received a new driver’s license with his name

changed.4

Over a year and a half later, on December 10, 2012, Mr. Dinh received a letter from the DMV

stating that his license was suspended because it was obtained by fraud.5At the administrativehearing

for the case, the hearing officer told Mr. Dinh that he could not change his name in the same manner

that a woman could6and that he would need a court order to do it.7After filing in civil court to appeal

the decision, a DMV representative told Mr. Dinh that his driving privileges would be restored

provided he bring proof of his name.8After 27 days, the suspension was lifted on Mr. Dinh’s driving

privileges.9

Correspondence: michaelsladefcr@gmail.com

FAMILY COURT REVIEW,Vol. 53 No. 2, April 2015 336–351

© 2015 Association of Familyand Conciliation Cour ts

This case illustrates the norm for marital surname changes in the United States. Jake Wolff, a

lawyer and chief executive office (CEO) of HitchSwitch, a service that helps newlyweds legally

change their names, stated “Most states don’t have gender neutral laws, because they assume a bride

will take the groom’s name.”10Although the U.S. Census Bureau does not keep figures on the number

of men who are taking their brides’ names, it is occurring more often.11 According to an article by Fox

News, a clerk in MilwaukeeCounty, Wisconsin, estimated that one in every 100 grooms in that county

takes the name of his wife.12

The notion that a wife will take her husband’s name upon marriage is rooted in history and

continues to be the general practice.13 A study by David R. Johnson and Laurie K. Scheuble revealed

that about ten percent of married women in the United States use something other than their husband’s

last name.14 However, a more recent study conducted by Claudia Goldin and Maria Shim shows that

the percentage of married women using something other than their husbands’ name is about twenty

percent, but has been declining in recent years.15

The Centers for Disease Control (CDC) and the Social Security Administration16 do not provide

data on “reverse name swaps.” However, the company HitchSwitch provides some interesting

numbers.17 The CEO of HitchSwitch stated that the company helped about 2,000 couples change their

names between June 2011 and February 2012. Fivepercent of those clients had been men either taking

their wives’ last name or using a hyphenated version of both names.18 Furthermore, through the first

quarter of 2012, there had already been an increase in the number of males taking a hybrid name using

HitchSwitch.19 The problem is that the majority of name change statutes only provide women with the

option to change their husband’s name upon marriage. This is going to become more problematic with

the increase in legalized same-sex marriage. State statutes need to be revised to reflect this change.20

Currently, a woman has the statutory right to either change her last name upon marriage or retain

her maiden name in all fifty states.21 Conversely, marrying men have the same right in only nine

states.22 In the remaining forty-one states, a husband who wishes to take his wife’s last name or a

hyphenated version must obtain a court order, which may cost hundreds of dollars.23The process can

be time consuming and, when all is said and done, a judge usually has unlimited discretion to decide

such matters.24 A Florida judge once told a husband petitioning the court to change his surname to his

wife’s that he “needed a better reason than getting married to change his name.”25

This is not a trivial problem in light of the increasing number of people getting married who want

to have unconventional names. More states are legalizing same-sex marriage, meaning an increase in

the number of men who wish to take their spouse’s surname or use some combination of both names.

According to a study by the Pew Research Center, since 2004, when Massachusetts became the first

state to legalize same-sex marriage, there have been approximately 71,165 same-sex marriages in the

United States.26 This is a significant number of people who are unable to change their surnames in the

same manner a woman could in a heterosexual marriage. The fact that marrying men do not have

the same statutory right as women to change their surname upon marriage is a violation of the Equal

Protection Clause of the Fourteenth Amendment.

This Note argues that it is unconstitutional for states to have unequal procedures for men and

women to change their surname upon marriage in violation of husbands’ equal protection rights.

In cases involving gender discrimination, courts analyze the states’ interests in maintaining the

discriminating statute under intermediate scrutiny.27 Under this standard, a party seeking to

uphold government action based on sex must establish an “exceedingly persuasive justification.”28

To pass intermediate scrutiny, the defender of the challenged action must show “at least that the

classification serves important governmental objectives and that the discriminatory means employed

are substantially related to the achievement of those objectives.”29 This Note will argue that the

interests advanced by states to uphold different marital name change statutes are not exceedingly

persuasive justifications; therefore, courts should strike down statutes that discriminate against men

changing their surname upon marriage or extend to men the same rights women currently have in

all states.

Part II of this Note covers a brief history of marital name changes, the current statutory law

regarding marital name changes and the gender discrimination in states that do not allow husbands to

Slade/WHO WEARS THE PANTS? 337