Bordelon: "Gate(s) Keeping or Scot(t) Free? The Legal Environment of Marital Surname Use, Post-Divorce"

Gregory Bordelon (Suffolk University) has recently posted to SSRN his paper, Gate(s) Keeping or Scot(t) Free? The Legal Environment of Marital Surname Use, Post-Divorce.  Here is the abstract:

Because of the ongoing pervasive practice of surname-taking in marriage, society has long placed the burden on women, not men, in a divorce to make a choice, one at the core of identity: decide again on a name. In so doing, the toll that a divorce may have on a woman and the family also forces her to decide on a new identity. The overwhelming majority of state statutes provide for the option for her to re-adopt a surname used before her marriage; some even allow any new surname. But, what happens to the marital surname if a divorced woman wishes to keep using it? What if she contributed to the value of that surname during the marriage? What if broader social elements of her life during her marriage caused her to align with the surname in her own personal ways? Shouldn't she be able to continue using it on firm legal ground beyond custom? In a purely legal sense, is the name hers? 

The work seeks to establish a firm legal foundation for a divorced individual's use of their former spouse's surname after a marriage ends. Part I is a brief history of surnames, the onset of hereditary surnames and the development of patriarchal institutions such as coverture shaping a woman's naming rights. It will include a history of marital surname usage in the United States borrowing from the English common law up to the advent of ostensible egalitarian protection in a series of 1970s court decisions. Part II will look at the current legal framework for surname usage during a marriage as well as the extralegal, social factors driving women to continue using a marital surname and also the nascent field of surname choices for same-sex married couples. Part III will then turn to the law of surname options at the time of divorce and thereafter, analyzing in detail the vast differences in the states' statutes in the area, particularly what options are available in the statutes, when the change must happen, and who may raise the issue. It will also look at the residual legacy of gendered language in some of the statutes. Part IV will propose a model law on marital surname use post-divorce, establishing guidance and predictability in this area to allow divorced individuals, in addition to existing options, the statutory ability to confirm rights in, and continue using, the name of their former spouse for all purposes.