TN 5 (06-10)

A. PR 10-081 Use of New Hampshire Same-Sex Marriage Documents as Name Change Documents

DATE: April 6, 2010

1. SYLLABUS

The Equal Access to Marriage statute, N.H. REV. STAT. ANN. § 457:1a, which became effective on January 1, 2010, permits same-sex couples who are 18 years of age or older to marry in New Hampshire beginning January 1, 2010. New Hampshire permits parties to same sex marriage to change their names based upon the marriage in the same manner as any other person changing their name by marriage.

In addition, effective January 1, 2011, all civil Unions registered in New Hampshire before January 1, 2010 became marriages unless otherwise dissolved, annulled or previously converted to marriage. Individuals in relationships falling into the category of domestic partnership were not impacted by the legislation.

2. OPINION

This memorandum is in response to your request for an opinion concerning the use of a New Hampshire same-sex marriage certificate as proof of a name change following the recent enactment of New Hampshire’s Equal Access to Marriage statute, N.H. REV. STAT. ANN. § 457:1-a, which became effective on January 1, 2010. Specifically, you requested an opinion as to whether New Hampshire state law allows an individual to change his or her legal name after entering into a same-sex marriage in New Hampshire. You also inquired (1) whether State law permits the parties to change their names based on the marriage; (2) whether any restrictions might apply; (3) whether an individual must take additional action to effectuate the name change; (4) the date that the State began issuing marriage licenses and certificates to same-sex couples; (5) the impact of the same-sex marriage laws upon previously existing civil unions or domestic partnerships; (6) whether a same-sex couple must dissolve a previous civil union or domestic partnership prior to entering into a marriage; (7) whether a same-sex civil union is automatically dissolved when a same-sex marriage occurs; and (8) the nature of the procedures for dissolution of a New Hampshire same-sex marriage.

As set forth below, an individual may change his or her name for any lawful reason in New Hampshire. A New Hampshire same-sex marriage certificate may be used in the same manner as any other New Hampshire marriage certificate as proof of a name change in New Hampshire, with one possible exception detailed below. No action is necessary to effectuate a name change other than usage, and the only restriction on a name change is that the name change cannot be made for a fraudulent, criminal or wrongful purpose. New Hampshire began issuing marriages licenses and certificates to same-sex couples on January 1, 2010. With respect to civil unions, same-sex couples may opt to have their civil unions “solemnized” and merged into a marriage prior to January 1, 2011; after January 1, 2011, all remaining, effective civil unions will be merged into marriages by operation of law, without any act of the parties. A same-sex marriage is dissolved in the same manner as any other marriage, and a same-sex marriage dissolution or annulment decree may also be used as proof of a name change.

ANALYSIS

Generally, New Hampshire follows the common law with respect to name changes, under which a person may lawfully change his or her name without resort to any legal proceedings where such a change is not made for a fraudulent, criminal or wrongful purpose. Moskowitz v. Moskowitz, 385 A.2d 120, 122 (N.H. 1978). Those statutes that New Hampshire has enacted pertaining to name changes setting forth procedures for implementing name changes “do not abrogate or supersede common law, but merely affirm and aid it.” Id. Therefore, under New Hampshire law, an individual may change his or her name for any reason (so long as such a change is not made for a fraudulent, criminal, or wrongful purpose), including based on entering into a New Hampshire same-sex marriage or the dissolution of a New Hampshire same-sex marriage.

Under common law, a name change is effectuated simply by use of the new name. 57 AM. JUR. 2d Name § 16 (2010). Thus, any document showing use of the new name could conceivably serve as an indication that a name change has occurred. See, e.g., N.H. CODE ADMIN. R. ANN. Saf-C 511.08(b) (2010) (permitting change of name on driver’s license with evidence of name change petition, marriage certificate, divorce decree, passport, adoption decree, court decree, or notarized statement); N.H. CODE ADMIN. R. Den 301.07 (2010) (requiring “copy of the documentation that legally changed the name, if any” for New Hampshire Board of Dental Examiners); N.H. ADMIN. R. Bar. 302.07 (h)(1)(c) (requiring “a copy of official documentation, such as a marriage license, court paper, [or] divorce decree” for Board of Barbering, Cosmetology and Esthetics). While an individual may petition the court for a name change under N.H. REV. STAT. ANN. § 547:3-i (2010) (permitting name change generally) or N.H. REV. STAT. ANN. § 490-D:2(X) (2010) (permitting name change relative to a family court matter), such a petition is not necessary under New Hampshire law. M~, 385 A.2d at 122. We could find no New Hampshire legal authority requiring that an individual take additional action other than usage to change his or her name.

More specifically, your inquiries are addressed in turn:

1. Whether the State permits parties to the same-sex marriage to change their names, first name, and/or surname, based on the marriage.

Yes. New Hampshire no longer differentiates between same-sex marriages and heterogeneous marriages: both categories have been subsumed within a single definition of marriage under New Hampshire law. See N.H. REV. STAT. ANN. § 457:1-a (2010). Thus, the procedures for effectuating name changes for same-sex couples are the same as those for heterogeneous couples. New Hampshire permits the use of an original or certified copy of a marriage certificate as proof of a name change. See, e.g., N.H. CODE ADMIN. R. Saf-C 511.08(b) (2010) (concerning name changes for driver’s licenses). Thus, a name change request based upon a New Hampshire same-sex marriage certificate should be processed under Program Operating Manual System (POMS) RM 00203.210.B in the same manner as a name change request based upon any other New Hampshire marriage certificate.

2. Whether there are any restrictions on such name changes.

Yes, but the restriction is minor. In almost all respects, New Hampshire’s legislation simply expanded the definition of marriage to include same-sex couples.

However, New Hampshire does not permit marriages between individuals of the same sex under the age of 18, and any purported same-sex marriage involving an individual under the age of 18 is null and void. N.H. REV. STAT. ANN. § 457:4 (2010). Thus, a marriage certificate issued to a same-sex couple would be without any legal effect if one of the individuals is under the age of 18.

3. Whether there are any additional actions that the individual must take to change his or her name to conform to State Law after entering into the same-sex marriage.

No. As explained above, no specific formal actions are required to effectuate a name change under New Hampshire law. This is true with respect to same-sex marriages to the same extent as other marriages.

4. The date the State will begin issuing marriage licenses and certificates to same-sex couples.

New Hampshire began issuing such marriage licenses and certificates on the effective date of the amendment to the State’s definition of marriage, January 1, 2010. See N.H. REV. STAT. ANN. 457:1-a (2010).

5. Any change to the status of prior or new civil unions or domestic partnerships entered into in the same State.

New Hampshire law prohibits the establishment of new civil unions after January 1, 2010. N.H. REV. STAT. ANN. § 457:46(I) (2010). Meanwhile, parties to a civil union entered into prior to January 1, 2010, are eligible to “merge” their effective civil union into a marriage at any time prior to January 1, 2011. Id. As of January 1, 2011, all individuals party to an effective civil union, and who have not already merged their civil union into a marriage, shall be deemed married by operation of law. Id. § 457:46(II).

We note that New Hampshire does not accord any special recognition to domestic partners. In New Hampshire, the term ‘domestic partner’ means an individual who shares a domicile and the expenses of daily living with another person, but who are not joined in a legal marriage or civil union under New Hampshire law.” N.H. CODE ADMIN. R. ANN. Jus 602.12 (2010). Thus, individuals in relationships falling into the category of domestic partnerships will not be impacted.

6. Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.

As indicated immediately above, same-sex couples may apply to have their civil unions “merged” into marriages on or before January 1, 2011. As of January 1, 2011, all same-sex couples in effective civil unions will be deemed married. Any couple that wishes to have a civil union formally solemnized as a marriage should apply for merger between January 1, 2010, and January 1, 2011. After that time, the couple will already be married by operation of law. As stated above, domestic partnerships will not be affected.

7. Whether a same-sex civil union is automatically dissolved when a same-sex marriage occurs.

As explained above, a civil union may be converted through the process established by the legislature between January 1, 2010, and January 1, 2011. N.H. REV. STAT. ANN. § 457:46(I) (2010). After that point, the same-sex couple would automatically be deemed married without independent action. Id. § 457:46(I).

8. Procedures for the dissolution of a New Hampshire same-sex marriage and the relevant documentation that would allow Social Security to change a name to a prior name in the event of the dissolution.

With respect to the dissolution of a New Hampshire same-sex marriage, New Hampshire’s statutes concerning dissolution of a heterogeneous marriage apply equally to a New Hampshire same-sex marriage. See also N.H. REV. STAT. ANN. § 457-1-a (2010) (redefining marriage to include same-sex couples). In New Hampshire a marriage is dissolved by a decree of divorce or nullity. N.H. REV. STAT. ch. 458. Under N.H. REV. STAT. ANN. § 458:24 (2010), at the time of entry of a decree of divorce or nullity, upon the request of either party, the court shall restore a person’s former name. New Hampshire state agencies appear to accept as proof of a name change a certified copy of a divorce decree. See, e.g., N.H. CODE ADMIN. R. ANN. Saf-C 511.08(b) (2010). Furthermore, given the common law right to change names for any reason, we conclude that an individual may change his or her name as a result of the dissolution of a same-sex marriage without requesting that a court restore a former name. As previously discussed, under the common law, such a change may be effectuated simply by use of the new name.

Conclusion

Based on the above analysis, we conclude that an individual may change his or her name for any lawful reason in New Hampshire. A New Hampshire same-sex marriage certificate may be used in the same manner as any other New Hampshire marriage certificate as proof of a name change in New Hampshire. Given the New Hampshire legislature’s election simply to redefine marriage to include same-sex marriages, the agency can comfortably employ the same procedures that it uses with respect to name changes following heterogeneous marriages.