The tradition of women dropping their maiden name upon marriage stems from historical coverture laws
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The literature notes that coverture merged a married woman's legal identity with her husband's, but it lacks a direct historical consensus proving that the modern tradition of dropping a maiden name stems specifically from those laws.
In virtually all states, individuals who adopt their spouse’s surname in marriage do not have clear statutory guidance on the right to use that surname following marital dissolution. Because of the ongoing, pervasive practice of surname-taking in marriage, society has long placed the burden on women, not men, to make a choice upon divorce—one at the core of identity—to decide again on a name. The overwhelming majority of state statutes provide women the option to readopt a surname used before marriage; some even allow the adoption of any new surname. But what if a divorced woman wishes to continue using her marital surname? What if she contributed to the value of that surname during the marriage? What if her personal and social identity came to align with the marital surname? Should she not be able to continue using it on firm legal grounds, beyond mere custom? In a purely legal sense, is the name hers?
This Article seeks to establish a firm legal foundation for a divorced individual’s use of their former spouse’s surname following marital dissolution. Part I presents a brief history of surnames, the genesis of hereditary surnames, and the development of patriarchal institutions, such as coverture, that shape a woman’s naming rights. This account includes a history of marital surname usage in the United States, which borrowed from the English common law up to the advent of ostensibly egalitarian protection in a series of 1970s court decisions. Part II examines the social factors driving women to continue using a marital surname and discusses how these matters have shaped the current legal framework of surname usage during a marriage. Part III turns to the law of surname options at the time of divorce and thereafter, detailing the vast differences in the state law governing the area, particularly: what naming options are available in state statutes, when the name change must happen, and who may raise the issue. This section also addresses the legacy of gendered language in these statutes. Part IV proposes a model law on marital surname use post-divorce, establishing guidance and predictability in this area. The model law would allow divorced individuals the statutory ability to confirm their rights in a marital surname for all purposes under a clear, explicit framework.
Coverture
Coverture was a legal doctrine in English common law under which a married woman's legal existence was considered to be merged with that of her husband. Upon marriage, she had no independent legal existence of her own, in keeping with society's expectation that her husband was to provide for and protect her. Under coverture a woman became a feme covert, whose legal rights and obligations were mostly subsumed by those of her husband. An unmarried woman, or feme sole, retained the right to own property and make contracts in her own name.
Coverture became well-established in the common law for several centuries and was inherited by many other common-law jurisdictions, including the United States.
After the rise of the women's rights movement in the mid-19th century, coverture came under increasing criticism as oppressive and as hindering women from exercising ordinary property rights or entering professions. Coverture was first substantially modified by late-19th-century Married Women's Property Acts passed in various common-law jurisdictions, and was weakened and eventually eliminated by later reforms. Certain aspects of coverture (mainly concerned with preventing a wife
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