11 December 2008

Colorado's Maiden Name Flub And More

As one of the few men who changed their names when he married (in New York State, where I got married, it could be done effortlessly in a variety of ways, by husbands or wives or both, on the marriage licenses itself), name change regulation always interests me.

[I have what is sometimes known as a double barrelled name, something we chose basically for feminist reasons, although there were practical considerations as well. Double barrelled names are something required by law in Spain, generally done without hyphens in Iberia and Latin America, and generally done with hyphens where it is done elsewhere (although not consistency). Double barrelled names have considerable salience, apart from odd birds like myself, because confusion over them is an important cause of election irregularities in places like Denver when election officials don't understand them, and they are in common use. We also considered, but ultimately did not decide to adopt, a blended surname or entirely new surname.]

Colorado's Ill Conceived Regulation Of Middle Names

The Colorado Department of Revenue, which regulates driver's licenses and state IDs recently tried to bar the common practice of taking a maiden name as a middle name following a marriage.

Public outcry has forced the State of Colorado to throw out a new rule it enacted just weeks ago to thwart identity theft.

The rule prevented newlyweds from turning their maiden names into middle names.

But because of a crush of complaints, the Governor's Office intervened and asked the Colorado Department of Revenue to adopt an emergency rule undoing the new rule. It will take effect on Monday. . . .

Mark Couch, spokesman for the Dept. of Revenue . . . says the state initially changed the rule to protect people from identity theft. "Felons who get out of prison will try to change their name to hide their bad past," he says.

That risk is still there. But the inconvenience was apparently greater. . . . The Department of Revenue will soon make the emergency rule permanent.

Before this emergency action, people could change their names but they had to go through the court process to get it done. The DMV will now make people who want to change their middle name attest that they're not doing it to evade the law. Those who get caught lying will have their licenses revoked.

Via Denver's local Fox News affiliate. Hat Tip to Think Outside The Cage.

The Denver Post also covered the story (earlier coverage here):

Following numerous complaints stemming from a new rule on newlywed name changes, the Division of Motor Vehicles has decided to give women more choices when picking their married monikers.

In mid-November, a new set of DMV directives barred women from taking their maiden names as their middle names on their driver's license unless they obtained a court order.

Less than a month later, the division is striking that rule, effective Dec. 15. . . .

The rule stemmed from laws meant to protect the public from identity theft.

It prevented women from changing their middle names after marriage. They could either hyphenate their last names or use both their maiden and new last names without a hyphen.

The emergency rule overturning the provision will eventually be made permanent, Couch said.

Women expressed outrage when, even after settling with the Social Security Administration, they had to accept driver's licenses under names they did not want.

The agency's attitude expressed in a Denver Post interview remains questionable, however, "Folks felt it wasn't fair," Couch said. "We are addressing that concern and making sure folks are sticking within a certain reasonable parameter when changing their names after marriage."

Since when is it the business of the DMV was decide what kind of name change after marriage is reasonable?

The offending rule is found in the Colorado Code of Regulations at 1 CCR 204-13 Part 2.3.5, and relies on Colorado Revised Statutes § 42-2-107(2) and § 42-2-302(2), C.R.S., for authority. But, neither statute actually purports to limit the means by which someone may change their name in Colorado. They simply require that your state ID or driver's license have your name on it. The proposed replacement rule is still contrary to Colorado law and will be subject to a December 30, 2008 hearing.

The Colorado Department of Revenue ruling about when a middle name can be changed by a married person is even more outrageous because, under the relevant Colorado law, any adult, even a felon, can change their name at common law simply by beginning to use a new one, without the benefit of a legal name change proceeding, and middle names have a dubious legal status in any case.

Indeed, the Colorado Supreme Court invalidated a similar Department of Revenue regulation in 1956, where the Department of Revenue had refused to issue a motor vehicle title using the first initial and full middle name of a person who was customarily known by his first initial and full middle name. Belvins v. J. Nelson Truitt, 134 Colo. 88, 299 P.2d 1100 (1956).

At common law as interpreted by Colorado's courts, your legal name is what you are called and answer to in day to day life. It your birth certificate says Krushchevia but you have always gone by Kitty, Kitty is one of your legal names in Colorado.

Furthermore, there are also many court cases in Colorado that hold that for some purposes, your middle name doesn't even count as part of your legal name. For example, a minor discrepancy in a middle name is not enough to defeat an extradition request. Beverly v. Davis, 648 P.2d 621 (Colo. 1982). The general rule in Colorado is that "the law recognizes but one Christian name, and does not regard a middle name or initial as essential in designating a person; and, as an abstract proposition this is true, as indicated in the decisions from . . . Doane v. Glenn, 1 Colo. 495, 502, and Webster v. Heginbotham, 23 Colo. App. 229, 238, 129 P. 569." Gibson v. Foster, 24 Colo. App. 434, 135 P.121 (1913) (holding that an exception to the general rule applies in a quiet title action where jurisdiction over a purported owner is obtained by publication and ignoring the middle name would lead to ambiguity over who is intended as a defendant).

Proof of an improper intent in connection with a name change can be used to prevent relief in a court action to change one's name, brought under Sections 13-15-101 and 13-15-102 of the Colorado Revised Statutes, which is one statutorily provided means of securing a name change, but a court action is not the exclusive means by which your name can be changed in Colorado. See In re Nguyen, 684 P.2d 258 (Colo. App. 1983); In re Knight, 36 Colo. App. 187, 537 P.2d 1085 (1975). Amendments to the statute made since those cases were decided do not unequivocally overrule them. The statute states that "Every person desiring to change his or her name may present a petition to that effect, verified by affidavit, to the district or county court in the county of the petitioner's residence[.]"

Name changes, by the way, are not the only area where Colorado law recognizes extra-governmental changes in personal status.

Colorado recognizes both common law marriage (i.e. a marriage entered into without a marriage license), and the concept of putative marriage (where a party to an invalid marriage is allowed to receive the legal benefits of a marriage believed in good faith to be valid, see Section 14-2-111, Colorado Revised Statutes), although common law marriages between minors are not recognized. Section 14-2-109.5, Colorado Revised Statutes. Further, while only certain public, religious and tribal officials are allowed to solemnize marriages, a marriage pursuant to a marriage license may also be solemnized "by the parties to the marriage" themselves (see Section 14-2-109, Colorado Revised Statutes).

The Larger Common Law Tradition Of Decentralized Deference To Reality

Indeed, Colorado's acceptance of common law name changes is a nature counterpart to Colorado's acceptance of common law marriage, which frequently is accompanied by a common law name change.

Unlike some states, Colorado also lacks any comprehensive statutory court process for emancipating minors under the age of nineteen. The law in Colorado is basically that a minor is emancipated (for non-marital purposes) if a minor, in fact, is living independently and is not supported by a parent or guardian. This is adjudicated, as a factual matter, as just one element of the evidence in a case where emancipation of a minor is relevant, rather than made as a global determination of a child's status.

Colorado's characteristically and traditional American approach to personal status fits the overall American legal scheme. No one national system comprehensively coordinates the information in a birth certificate, citizenship information, voter registration, marriage information, a death certificate, divorce decrees, change of name rulings for an individual in a single place. In contrast, in a typical civil law country, like France, all records regarding a person's personal status are maintained in the office with jurisdiction over the place of their birth. So, for example, a copy of your marriage license or divorce decree would be sent to the clerk in charge of vital statistics records in the locality where you were born.

American law also takes a similar attitude towards real estate records. While most countries (including most of England and Australia) operates under a system of title registration, where parcels of real estate are assigned certificates which operate much like a car title, largely eliminating the need for title insurance, American real estate records, with some minor exceptions, operate on a more ad hoc basis. You can record essentially any document related in some way (not always obvious) to a parcel of real estate's title with a clerk and recorder, typically at a county level, without pre-verification of facts that, for example, the seller actually owns the real estate in a deed. Land owners prove ownership by showing a "chain of title" going back a certain number of years, aided by the principal of adverse possession that vests legal ownership in anyone who has acted like an owner of the property for a sufficiently long period of time.

Even if your "chain of title" can't be traced back to an original owner, it suffices to establish a current owners title to the property if it goes back far enough (Colorado's eighteen year time period is typical).

The World Experience

Greater administrative cohesiveness of civil law countries made it possible for many civil law countries also have government regulations prohibiting parents from assigning certain names to their children, something almost entirely left to parental discretion in the United States. Some permit parents to choose only from an approved list designed to preserve a national cultural identity, while others simply retain the discretion to reject names deemed outrageous. Tradition and statute have regulated surnames even further, with Sweden, for example, large switching from a system of patronymic names (e.g. Johnson for the son of John) to a system of inherited surnames (the son of Jack Johnson might be Mark Johnson rather than Mark Jackson) in the 19th century.

According to Wikipedia, the practice of using fixed family names was adopted in the following years in the following countries: Netherlands (1811), Japan (1870s), Thailand (1920), and Turkey (1934).

In Britain, hereditary surnames were adopted in the 13th and 14th centuries, initially by the aristocracy but eventually by everyone. By 1400, most English and Scottish people had acquired surnames, but many Scottish and Welsh people did not adopt surnames until the 17th century, or even later. Henry VIII (1509 - 1547) ordered that marital births be recorded under the surname of the father. . . .In England and cultures derived from there (therefore, not in France, for example), there has long been the patriarchal tradition for a woman to change her surname upon marriage from her birth name to her husband's last name. From the first known US instance of a woman keeping her birth name, Lucy Stone in 1855, there has been a general increase in the rate of women keeping their original name. This has gone through periods of flux, however, and the 1990s saw a decline in the percentage of name retention among women. As of 2004, roughly 90% of American women automatically assumed their husband's surname upon getting married. Even in families where the wife has kept her birth name, parents often choose to give their children their father's family name. In English-speaking countries, married women are traditionally known as Mrs [Husband's full name].

For my druthers, and admittedly, I am American so I'm biased, I like the common law American approach, even though it can be a bureaucratic mess at times in the modern era, because it empowers individuals, even in the absence of formal state authority, and because of its curative effect of validating de facto situations, rather than trying to construct a legal reality deeply separated from the every day reality


Dave Barnes said...

Solution = keep your birth name and DON'T change it.

That is what I told my wife 24 years ago. But, no, she had to change it. What a disaster.
Birthname = Tracie Elizabeth Tandy
First Married Name = Tracie Elizabeth Barnes
After 16+ years she decides to be: Tracie Tandy Barnes.

Do you know how many documents changing your middle name reflects?

Don't answer as it was/is a rhetorical question.

Andrew Oh-Willeke said...

Rhetorical question, semaphorical question!

Of course, I know, first hand, having done it.

Anonymous said...

Sounds like some employees of the CO DMV went to a Homeland Security seminar.

Dave Grady said...

Great article. One part I would have liked to learn more about was the gender equity issue regarding name change. Whereas women can change their name at will, men are required to go through a more rigorous court-adjudicated process.

At least as of 2007, only 6 states had gender-equity laws regarding name change: http://www.associatedcontent.com/article/124236/man_sues_california_to_take_wifes_last.html

I know, because my wife and I both changed our name upon marriage. Rather than taking each other's name, we took my mother's maiden name, thus honoring both the female contribution and our ethnic heritage.

The basic point is that men and women should be equally able to change their names, but it'll take some time (and awareness) for folks to open up to the choice that's inherent in any name.

Andrew Oh-Willeke said...

I'm not aware of any such inequity.

I was able to change my name with my marriage certificate in New York, and have used that credential since then to prove my identity in Colorado. The Colorado statutes and regulations concerning name changes are gender neutral.

Also, Colorado's court process is strictly speaking, optional rather than mandatory, something established in a case brought by a man changing his religion, rather than his marital status.

Diane Hernandez said...

Andrew, have you heard anything about this: I am married to a man from Mexico. He has two surnames - the first is his father's last name, and the second is his mother's maiden name. That is his legal last name, however he only uses his father's last name for "daily" use. When I married him, I took on that first last name only. This is common practice, from my understanding. I was born under only one last name, having been born here in the states. But, had I been born in Mexico, with two last names as well, then after getting married, I would retain my maiden name and take his father's last name for my second surname. So, yesterday, I went to the Colorado DMV to get my Colorado driver's license. I was told that since I have no legal document showing that I have taken both of my husband's surnames, I cannot get a driver's license in Colorado until I do. They said it was state law (one "supervisor" claimed it was federal law, which was obviously untrue as there are no federal driver's license laws to my knowledge). But they could not tell me where in the law this provision could be found. I have been searching online since then and cannot find anything like that. So, questions for you: 1) have you heard of this law? 2) do I have to get the court to issue something that confirms my last name (it wouldn't be a name change since I would not be changing anything) 3) does this seem like something I should consult a lawyer about? I'm not asking you to give me legal advice - just your thoughts about this situation based on your article above. Thanks!

andrew said...

When I married, the change in name was noted on my marriage certificate from New York State.

From a practical perspective, if your marriage certificate does not have that indication, the easiest thing to do may be to file a change of name petition in the county court (a court of limited jurisdiction) in the county where you reside, using standard court forms available on the Colorado Supreme Court website under the self-help tab.

While they are surely misstating Colorado state law in general on the subject, there may be DMV regulations (or at least de facto Colorado DMV practices) to that effect.

There is a federal law setting standards for "secure" driver's licenses that influences federal transportation funding for states. It doesn't really supersede state law, but if states follow those guidelines they can get extra funding. But, as far as I know, that law is pretty much exclusively concerned with documentation of citizenship status, rather than with documentation of marital name changes.