October 15, 1980
Subject:
Marriage and Divorce; Authorization in Divorce Decree for Wife’s Resumption of Maiden Name.
Requested By
Honorable John H. Parker, District Court Judge 10th Judicial District
Question:
When a husband sues for divorce and the court ends up granting the husband his desired relief, may a wife in her answer ask for resumption of her maiden name or, to comply with the literal language of G.S. § 50-12, does she have to counterclaim for divorce?
Conclusion:
The court may not grant in the divorce decree authorization for the wife to resume her maiden name unless the wife filed the complaint for divorce or a counterclaim (cross bill) for divorce.
North Carolina General Statutes § 50-12 provides that a woman who has been divorced in North Carolina may resume the use of her maiden name or the name of a prior deceased husband, or a name composed of her given name and the surname of a prior deceased husband, upon application to the Clerk of Court of the county in which she resides. The same provision also permits a woman to petition the court for resumption of her maiden name or the adoption by her of the name of a prior deceased husband, or of a name composed of her given name and the surname of a prior deceased husband, "in the complaint or cross bill for divorce filed by" the wife. The court is authorized to incorporate into the divorce decree an order permitting her to resume her maiden name or to adopt the name of a prior deceased husband or a name composed of her given name and the name of a prior deceased husband "upon the granting of the divorce in her favor."
The question has arisen whether the court may permit the wife to resume her maiden name by incorporating an order in the divorce decree in a case in which the husband brought the action for divorce, the wife did not contest the divorce action, and the court grants the husband his divorce. The literal language of G.S. § 50-21 requires the wife to file a "complaint or cross bill for divorce" in order to petition the court for the resumption of her maiden name. Thus, the language of G.S. § 50-12 requires the wife to file the complaint itself or to file a counterclaim (the successor to the cross bill) for divorce in order to petition the court for resumption of her maiden name. Thus, the language of G.S. § 50-122 requires the wife to file the complaint itself or to file a counterclaim (the successor to the cross bill) for divorce in order to petition the court for resumption of her maiden name or one of the other names allowed by this statutory provision. The court is only authorized to incorporate an order allowing her to resume her maiden name, or one of the other authorized names, if it grants the divorce in her favor. Where the husband brings the action for divorce, and the wife does not contest it or counterclaim for divorce, the court cannot include in the divorce decree an order authorizing her to resume her maiden name. The wife may still request resumption of her maiden name or one of the other names permitted by the statute from the Clerk of Court in the county in which she lives as is also provided by G.S. § 50-12.
Rufus L. Edmisten Attorney General
Norma S. Harrell Assistant Attorney General