TN 5 (06-10)

A. PR 10-092 Use of Vermont Same-Sex Marriage Documents as Name Change Documents

DATE: April 22, 2010

1. SYLLABUS

The Vermont’s Act to Protect Religious Freedom and Recognize Equality in Civil Marriages, 2009 Vt Laws 2009-2010 which went into effect on September 1, 2009 permits same-sex couples to marry in Vermont beginning September 1, 2009. Vermont permits parties to a same-sex marriage to change their names based upon the marriage in the same manner as any other person changing their name by marriage.

Civil Unions established before September 1, 2009 will continue to be recognized in Vermont. The new legislation has removed the ability to register a new Civil Union as of September 1, 2009. Prior Civil Unions must be dissolved before marrying someone not party to the Civil Union. Domestic relationships or partnerships will not be affected.

2. OPINION

This memorandum is in response to your request for an opinion concerning the use of a Vermont same-sex marriage certificate as proof of a name change following the recent enactment of Vermont’s Act to Protect Religious Freedom and Recognize Equality in Civil Marriages, 2009 Vt. Laws 2009-2010 Legislative Session (2009), which became effective on September 1, 2009. Specifically, you requested an opinion as to whether Vermont state law allows an individual to change his or her legal name after entering into a same-sex marriage in Vermont. 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 Vermont same-sex marriage.

Briefly, SSA may accept the documentation associated with a same-sex marriage or divorce as proof of a name change. Your other questions are answered below.

Analysis

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

At common law, a person could 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, merely by use of the new name. 57 AM. JUR. 2d Name § 16 (2010). Thus, under the common law, any document showing use of the new name could conceivably serve as an indication that a name change has occurred. However, it does not appear that Vermont has adopted the permissive common-law rule. Indeed, Vermont has enacted statutes that undermine the common-law approach. See generally Julia S. K~, The Right to Control One’s Name, 57 UCLA L. Rev. 313, 318-19 & passim (Oct. 2009) (arguing that common-law freedom to change names at will has been largely eroded by documentation requirements, statutory enactments, and discretion afforded judges to deny name changes). Most notably, the Vermont legislature has promulgated a specific procedure to govern name-change petitions. VT. STAT. ANN. tit. 15, § 811 (2010) (“A person of age and sound mind may change his or her name by making, signing, sealing and acknowledging before the judge of the probate court of the district in which the person resides . . . .”). According to the Vermont judiciary’s website, “[l]egal name changes are only necessary if you are interested in changing your name by an Official Court order. For non-legally binding day-to-day usage or return to a maiden name, an official Court order is often unnecessary.” See Name Change of Adult Information, http://www.vermontjudiciary.org/GTC/Probate/MasterDocumentLibrary/Name%20Change%20of%20Adult%20Information.pdf. Thus, at least some formal action is typically required to effectuate a name change for legal purposes, presumably including purposes under the Social Security Act.

Vermont has defined marriage to embrace the union of same-sex as well as heterogeneous couples, see VT. STAT. ANN. tit. 15, § 8 (2010), and Vermont marriage licenses permit an individual to designate himself or herself as a bride, groom, or spouse, id. tit. 18, § 5131(a). The marriage license contains a blank for both individual’s names. Id. § 5131(a)(2). After the marriage is solemnized, the resulting document is referred to as a marriage certificate. Id. § 5131(b). Vermont does not appear to have enacted any specific statute providing that a marriage certificate, in and of itself, effectuates a legal name change. However, Vermont’s administrative regulations invariably recognize marriage certificates as sufficient proof of identification or a legal name change. See 12-3-206, VT. CODE R. § 2601.3(2) (2010) (general assistance); 20-1-3 VT. CODE R. § I(a) (obtaining renewal of home address confidentiality status); 20-4-4 VT. CODE R. § 3.6 (2010) (acupuncturists); 20-4-11 VT. CODE R. § 3.4 (2010) (naturopathic physicians); 20-4-16 VT. CODE R. § 3.3 (2010) (psychoanalysts); 20-4-200 VT. CODE R. § 3.3 (2010) (architects); 20-4-1200 VT. CODE R. § 4.6 (2010) (optometrists); 20-4-2000 VT. CODE R. § 3.3 (2010) (veterinarians); 20-4-100 VT. CODE R. §1.7(b) (2010) (mental health practitioners).

Accordingly, we conclude that Vermont permits parties in same-sex marriages to change their names based on the underlying marriage certificate. Our conclusion stems from the fact that such a certificate constitutes adequate proof of a legal name change in Vermont under the administrative code. We note that our opinion is less firm with respect to an individual’s first name. There is, of course, a long tradition of surname name changes at the time of marriage. It would appear less customary for an individual to change his or her first name at the time of a marriage. And, as stated above, Vermont does seem to require certain formalities with respect to name changes. VT. STAT. ANN. tit. 15, § 811 (2010). Meanwhile, in some situations, a name change may be denied. Id. § 558 (establishing that, upon divorce and absent good cause to the contrary, a court “may allow [a woman] to resume her maiden name or the name of a former husband” (emphasis added)). Nevertheless, given the sufficiency of marriage certificates as proof of identification and change of name, we think that, as a practical matter, our concern is largely theoretical.

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

Vermont does not appear to place any additional restrictions upon individuals seeking to change their names based on same-sex marriages beyond those involved in any name-change process. It is unclear whether an individual has complete discretion to change his or her name to anything he or she chooses. The Vermont statutes and case law do not place any specific restrictions upon name changes via the marriage certificate. See VT. STAT. ANN. tit. 18, § 5131(a)(2) (2010). Nevertheless, it is also clear that Vermont typically requires court involvement in the name-change process, even in situations involving adults. Id. tit. 15, §§ 558, 811.

Vermont’s law is equivocal regarding the level of scrutiny, if any, a court should apply to an individual’s decision to change his or her name. On one hand, the general name-change statute appears to relegate the court to a purely ministerial role in processing the name change and ensuring that the individual seeking the name change is of age and of sound mind. Id. § 811. Conversely, upon divorce, a court “may allow [a woman] to resume her maiden name or the name of a former husband.” Id. § 558 (emphasis added). Section 558’s test implies that the woman may not take a name other than that of her former husband or her maiden name. Id. Moreover, the court may not allow the name change at all upon a showing of “good cause to the contrary.” Id. Even where good cause is not shown, the word “may” connotes that discretion is vested in the court to deny the name change.

We suspect that, if squarely presented with the issue, Vermont would decide that judges do have some discretion to deny a name change in limited circumstances. Vermont’s statute prescribing the standard for the name change of a minor child, VT. STAT. ANN. tit. 15, § 812, mirrors § 811, the statute governing adult name changes. Despite explicitly recognizing the silence of § 812, the Supreme Court of Vermont nevertheless created a multifactor test to guide a court’s inquiry regarding the propriety of authorizing a proposed name change of a child. In re W~, 648 A.2d 648, 649-52 (Vt. 1994). While many of the concerns that animated the court’s decision do not apply in an adult name-change context-- i.e., the arguably disruptive effect of the name change upon children of divorced parents--we think the decision at least implies that courts are not required to rubber stamp all name changes. Thus, a court might properly reject a name change made for fraudulent purposes, see 57 AM. JUR. 2d Name § 16 (2010), or a name change involving a scandalous or otherwise objectionable name, see generally K~, supra, at 314-15 (listing examples of courts refusing to sanction purportedly inappropriate names).

As a practical matter, this limitation will have little effect, however. By the time SSA receives a marriage certificate, the relevant judicial officer presumably will already have made his or her decision regarding the propriety of the name change.

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, the marriage certificate itself suffices as proof of identity or a name change.

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

Vermont’s statutes authorizing same-sex marriage became effective on September 1, 2009. See, e.g., Vt. Stat. Ann. tit. 15, § 8 (2010). Thus, the State began issuing marriages licenses and certificates to same-sex couples on that date.

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

The Act to Protect Religious Freedom and Recognize Equality in Civil Marriages, 2009 Vt. Laws 2009-2010 Legislative Session (2009), repealed those statutory sections devoted to the issuance of civil union licenses and certification. However, the Act did not repeal the civil-union statutes themselves nor did it convert present civil unions into marriages. Furthermore, an individual in a present civil union is free to enter a marriage with the other party to the civil union, but not an individual who has entered into a civil union with a different person. VT. STAT. ANN. tit. 15, § 4 (2010). Therefore, we conclude that prior civil unions remain in effect and confer the same benefits as they did previously.

Vermont recognizes for certain purposes but does not explicitly define “domestic relationships.” See VT. STAT. ANN. tit. 13, §§ 5301(2), 5351(7)(C) (2010); id. tit. 15A, § 1-112; 12-4-202 VT. CODE R. §2.2(ss) (2010). In the same-sex context, the term was employed by the Vermont legislature in a statute seeking to impose child-support obligations in the event of the dissolution of a same-sex relationship. See Baker v. State, 744 A.2d 864, 882 (Vt. 1999) (discussing adoption and child support in context of domestic relationships). Such relationships were not altered by the recent legislation permitting same-sex marriages, but the requirements for such relationships are not entirely clear. It seems likely that a “domestic relationship” is, typically speaking, little more than a functional term used to describe an otherwise unrecognized sexual relationship featuring cohabitation. See generally id. at 883-84 (detailing paucity of benefits conferred to same-sex partners prior to enactment of civil-union statutes).

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

As indicated immediately above, an individual in a civil union may enter into a marriage with his or her civil-union partner. VT. STAT. ANN. tit. 15, § 4 (2010). An individual would, however, need to dissolve the prior civil union before marrying someone not party to the civil union. Id. Domestic relationships or partnerships would not be affected.

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

The Act to Protect Religious Freedom and Recognize Equality in Civil Marriages, 2009 Vt. Laws 2009-2010 Legislative Session (2009), is silent regarding the impact of a subsequent marriage upon a civil union between the same parties. However, the Legislative Council of the State of Vermont has clarified that “[c]ouples with existing civil unions will be permitted to marry one another” and that “[t]he civil marriage does not dissolve the civil union.” See State of Vermont Legislative Council, Frequently Asked Questions About S. 115, An Act Relating to Civil Marriage, As Passed by the House and Senate, available at http://hrc.vermont.gov/sites/hrc/files/pdfs/ss%20marriage/ s115faq.pdf.

8. Procedures for the dissolution of a Vermont 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 Vermont same-sex marriage, Vermont’s statutes concerning dissolution of a heterogeneous marriage apply equally to a Vermont same-sex marriage. iVT. STAT. ANN. tit. 15, § 8 (2010). In Vermont, a marriage is dissolved by a decree of divorce or annulment. Id. §§ 511-637. As stated above, § 558 authorizes a court to restore a woman’s maiden name upon divorce. Notwithstanding the gender-specific language, we strongly suspect that a Vermont court would employ § 558 in cases involving same-sex couples. In any event, Vermont administrative law permits as proof of a name change a copy of whatever court order effectuated the name change. See 20-1-3 VT. CODE. R. § I(1)(a) (2010); 20-4-4 VT. CODE R. § 3.6 (2010) (acupuncturists); 20-4-11 VT. CODE R. § 3.4 (2010) (naturopathic physicians); 20-4-16 VT. CODE R. § 3.3 (2010) (psychoanalysts); 20-4-200 VT. CODE R. § 3.3 (2010) (architects); 20-4-1200 VT. CODE R. § 4.6 (2010) (optometrists); 20-4-2000 VT. CODE R. § 3.3 (2010) (veterinarians); 20-4-100 VT. CODE R. §1.7(b) (2010) (mental health practitioners). Thus, we conclude that, where the probate court has approved a name change as part of a divorce proceeding, we may accept the order as proof of the name change.

CONCLUSION

Based on the above analysis, we conclude Vermont permits legal name changes on the basis of same-sex marriages. A Vermont same-sex marriage certificate may be used in the same manner as any other Vermont marriage certificate as proof of a name change in Vermont. Given the Vermont legislature’s election simply to redefine marriage to include same-sex marriages, SSA can comfortably employ the same procedures that it uses with respect to name changes following heterogeneous marriages.