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Names & US law

I'm getting kinda tired of seeing false info circulating about how names work legally, so here's an overview. IANAL, IANYL, but I did legally change my name recently, and I did read the entire text of several dozen cases about it. I also have personally had ten years of experience with this in my personal and business life, including each category of name. So I probably know a lot more than most people.

I'm summarizing here for a general audience, so please pardon some slight legal imprecision. For more details, please read Julia Shear Kushner's excellent paper, The Right to Change One's Name (http://(uclalawreview.org/pdf/57-1-7.pdf), or if you actually care, read my collection of naming cases (zipped PDFs): http://saizai.com/namecases.zip

If I am wrong on anything, please correct me, but cite your sources and preferably provide a link. Here goes…


Most everybody has multiple perfectly legal names. For the sake of simplicity, here are the main categories. ALL THREE are legal names.

1. True name, i.e. the name that is listed on your birth certificate and so forth (modulo typos). This name is the only one you can use in federal court. It can be changed only by court order, which requires a few hundred dollars, publication in a local paper (unless you get a waiver, e.g. if it's being changed 'cause you have a stalker), etc.

Courts have some leeway about what they can grant, since this requires active government recognition and not merely a lack of interdiction, but generally have been slapped down on appeal if they deny something that's OK under common law.

2. Common law name, is simply a name that you use openly (and more or less primarily). Only 3 US states have abrogated this right by statute (and arguably those statutes are unconstitutional). It does not require filing anything with anyone, just day to day usage. It cannot be made for fraudlent purposes (e.g. impersonation of a celebrity, avoiding lawsuit or parole, etc); if you've been convicted of identity theft; if it's "fighting words" or equivalently obscene; or if it's simply incomprehensible as a name (e.g. it lacks letters). You can use any such name in state court and on contracts.

In the trivial case, using a nickname — e.g. Jack instead of John — is a common law name.

What names are OK varies. Courts are divided over whether mononyms are OK (most say yes); whether "Santa Claus(e)" is OK (about 50-50); etc. "Variable" is fine; "Fuck Censorship!", "Misteri Nigger", and "1069" got struck down, but "Ten Sixty-Nine" and "Richard XII-X" are fine. Recent courts have overturned older courts' presumption that children should have their father's surname. Etc… see JSK's paper for more.

Common law names do not need to be registered anywhere, and may well not be respected by e.g. a department of motor vehicles or passport office, who do not currently have a positive obligation to do anything about your name change without a court order. You can be told that you won't get a license under your common law name, but that doesn't stop you from having it. (Note though that the constitutionality of this is arguable; see the JSK paper.)

3. Fictitious business name aka doing business as aka operating as is a name that you have registered with your local county clerk. This is more or less the same as a legal name in some ways, but it's registered, and it's for use as a business more than as a person. Usually this is for e.g. "Bob's Bikes" or something, where you don't want to actually register an LLC / corp / etc, but it provides none of the protections that doing so does.


A person can have multiple of each of those. One is only supposed to have one "true name", but it can happen in a nonformal sense that one doesn't, such as if various legal documents get out of synch (eg birth cert doesn't match court order).

I think it's a strong legal argument that psuedonyms, handles online, and other autonyms are common law names and as such are legal names. In fact, it's a necessary argument for Google to support, because they provide services to people under a ToS contract which people must agree to before beginning to use the service. People often agree to it under a pseudonym, but doing so does not make it any less enforceable; pseudonyms are still perfectly valid names with which to sign a contract.

Further, there are several very strong legal arguments for why people have a fundamental right to change their names, including to use pseudonyms and other common law names, that are backed up by centuries of precedent and multiple state supreme court decisions. I defer to JSK's paper there, though, as I don't think I can summarize them any better than she already has. Go read it!


I hope that helps clarify a bit what the legal status of a "name" is. Or maybe just confused you into thinking about it more; that's OK too. :-P


I only know US law, so if you know others, please comment on any differences; I'd be interested to know more. English language academic references like the JSK paper above would be particularly good.

As I understand it, a UK "deed poll" is not a court order, but rather a kind of formal notarized statement that you file with a court that expresses one's decision to use one's common law right to change one's name. Its power comes from the person executing it, not from the court.
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+Kryptyk Physh changed his by deed poll. Ballsy mofo.

As for me, by this definition my pseudonym absolutely conforms to a common law name. Hooray and +1 for you for getting this all together. :)
 
I especially love your acronym for not being a lawyer. IANAL is perfect for a "use this as legal advice, and you f-your own self" warning. I'm sure its probably common knowledge elsewhere, but honestly my first time encountering it.
Sai
 
Heh, definitely not even close to being my original on that one. :-P
 
The situation in the eu is simple: you operate a online service, you accept pseudonyms. Links to the eu papers and the state law are to be found in many posts of the last two days. My trust into the no evil thing is deeply shattered. Even if google would be to change to policy into something law abiding. I not know if i can trust them any more after this.
 
I only know the rules in France and the Netherlands, which are similar and both based on the Napoleonic Code. I'll mention it when things are different. I don't have sources, and no time to look for them at the moment, but it shouldn't be too difficult to find some.

Under law based on the Napoleonic Code, what is allowed as a legal name is stricter than under US or UK law. Mononyms, for instance, are strictly illegal. Family names are mandatory. Changing them used to be impossible. Now it's just legally challenging.

Under Napoleonic law, people really have only one true name, the one on their birth certificate (typos and mistakes included). There is no equivalent to a common law name. The closest thing in the Netherlands is the so-called "roepnaam" or "nickname" (although it's not exactly the same as a nickname). Basically, in the Netherlands people usually don't use the actual given name(s) that are on their birth certificate or passport. Instead, they usually use an abbreviated name that is derived from one of their given names. It's usually the parents that start calling their children that way, and that usage carries on in adulthood. For instance, someone called Johannes on their birth certificate can be actually called Jan, Hans, Jannes, Hannes or some other form, depending on their parents' choice and/or the area they come from. Similarly, someone with the birthname Cornelius will usually be called Kees or Cees. But the "roepnaam" doesn't have to be related to the birth name. Using this "roepnaam" along with one's last name is actually considered a legal name, and can be used in most situations. Official forms usually ask for both the legal names and the roepnaam, so as to know how someone wishes to be addressed as.
That said, this is only valid in the Netherlands. In France, there is no equivalent, and one's only legal name is the true name one finds on their birth certificate and passport.

Changing one's name is a long and difficult process, and can only be done via a court order. Changing one's given name(s) is not too complicated, and you don't need a special reason to get such a change granted. Changing one's family name is another matter, and is only granted under very special circumstances. The ones I know of are:
- people put under the witness protection system;
- people whose last name is a slur or sounds ridiculous (the Netherlands have quite a few of those);
- victims of parental abuse who want to break their link with their families.
Just feeling that your last name does not represent you is not enough to get a family name change. All things considered, courts will always value the continuation of a family name over personal considerations.

Last but not least is the question of marriages. In both the Netherlands and France the rules are about the same, although they evolved that way independently. Basically, unlike in other countries marriage in the Netherlands and France doesn't automatically entail a name change. Indeed, one's true name doesn't change at all (you don't need to be issued a new passport). What partners get from being married however is a right to use their partner's family name, and that right is exactly the same for both partners. Basically, when someone is married, they are allowed to:
- keep being addressed by their own family name;
- start being addressed by their partner's name;
- use a combination of both, with both orders allowed.
You are allowed to use any of those possibilities, whenever you like, and to change them at will. Your partner has the same right, and you don't have to use the same last name. What does happen is that before getting married you must make a choice of one of those possibilities as being your favoured one. It doesn't make this option somehow more valid than the others: it's just an indication to the state that you wish to be addressed in official documents (tax documents, for instance) from the state using that option. Companies are also legally required to accept whatever option you choose, although some ask for proof that you are married before doing so, since it needn't be indicated on your passport.

That's about it. Now you know why I am called Christophe Grandsire-Koevoets while my partner's name is Jan Koevoets-Grandsire :) .
 
At the time and place I got married, my surname got automatically changed to my husband's surname by the state. I basically ignored it, since all my documents had my birth name on them (student ID, passports, drivers license, etc.). Also, most people didn't know I was married, and we wanted to keep it that way at the time, for various reasons, so I just kept using my birth name. It became a problem over time, as some of my state issued ID had to be replaced, and I found myself with half my documents saying I had one surname, while the other half said I had a different one. I ended up legally changing my last name to a hyphenated one, which seemed like less of a pain in the ass than choosing one and then replacing all the documents that didn't fit. Now I use either or both my last names as needed, depending on context, and they're all legal. I could legally change back to a single last name, but that, again, seems like too much trouble to bother with, especially since I have dual citizenship, and so double the documents.

Thankfully, both my "homelands" make it reasonably easy to change one's name officially/legally, but that's not the case for some EU countries, which is something that poses a huge problem for people like my Dutch friend, who wanted to be known legally by her mother's surname (divorced parents, absent father), and could only do it through a very lengthy legal process, and even that was only possible due to her mother's surname being on some sort of ethnic minority endangered name list. The overwhelming majority of my friends and acquaintances who live in the Netherlands, where it's next to impossible to change the name you were given at birth, are known to everyone, across the board, only by their (local equivalent of) 'common law name'. Perhaps my experience is due to the fact that, at least for my generation, and in the region of the Netherlands where I lived, single syllable first names are the norm, while given (first) names tend to be significantly longer, so people do tend to go by their "nicknames" in real life more often than not (except when a title+surname/Initials+surname construct is indicated, which it often is).

ETA: Or, you know, what +Christophe Grandsire-Koevoets said ;)
 
+Christophe Grandsire-Koevoets Yay for you and your partner having different name orders. :-) In our case we both decided to go with Jester-Young since my wife thought Young-Jester sounded too funny. :-P

I can't speak about the US but in New Zealand, upon marriage or civil union, you can use your original last name, your spouse's last name, or a combination of the two, all without having to go through any further legal process. So it's no different from what you've mentioned---except that, New Zealand being a common-law country, you also have the option of using a completely new last name, by going through a formal name change.

(That does not mean anything goes, however, especially if parents give their children names that would cause them serious social detriment. Google up "Talula does the Hula from Hawaii" for a recent case.)
 
+Ronnie B Unfilthy Double nationalities or living as an expatriate bring their own issues indeed. In my case, The issue comes from the fact that my very legal Dutch marriage isn't recognised by the French state (in contravention to all treaties and EU agreements about those things) since I married a person of the same sex. This makes for weird issues, especially when we are travelling abroad. It also means that my use of my double name is actually illegal in France, and that I potentially run afoul of Google's real name policy.

+Chris K. Jester-Young Yeah, we like it like that :) . We both wanted to use each other's last name without one name taking precedence over the other. This was the perfect compromise, in typical Dutch polder model fashion :) .
 
The UK has three legal systems: England-and-Wales, Scotland and Northern Ireland. I only know about England-and-Wales.

In England-and-Wales, you get a name initially from your birth certificate. It can be changed while you're still a child by adoption (both parts) and by parental divorce or remarriage (surname only). It can also be changed by your own marriage. There are a few other cases, for instance your name can be changed by Letters Patent (issued when you become a Lord)

Other than that, you change your name by Deed Poll. A deed is a single-signatory legal document - other examples are wills, deeds of assignment (the legal form of a gift), the deeds of trust, and so forth - it's the one-signer equivalent to a contract.

You have a common-law right to be called whatever you like, and a deed poll is not required to change your name, but issuing a deed poll provides some legal indication that you're serious about it, and is very useful if you want to change the name on your bank accounts or passport.

Under common law, the name you are generally known as is your legal name. The Deed Poll is merely a formal legal indication of your intent to change; if you don't get anyone to go along with it, then it might get invalidated.

Using Deed Polls to change to silly names, or names that make political statements, immediately before standing as a candidate in a public election, is a common practice among fringe candidates, and those names will be printed on the ballot papers.

The only people who can't change their names by Deed Poll are Peers of the Realm, whose name is defined by Letters Patent, and can only be changed by such (even marriage can't change their name; if a common man marries a female peer, then his name changes to match hers and not the other way around). Actually, there are two other exceptions: the Queen and the Prince of Wales, whose names are defined by statute law.
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