Accept marriage documents issued to same-sex couples for marriages that took place on October 06, 2014 or later by jurisdictions (town, county or State) in the State of Virginia as evidence of a name change.

BRIEF SUMMARY

The ruling of the United States Court of Appeals for the Fourth Circuit in Bostic v. Schaefer went into effect on October 6, 2014, after the U. S. Supreme Court declined to review the Fourth Circuit’s decision that Virginia’s statutes and state constitutional amendment prohibiting same-sex marriage were unconstitutional. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, ___ S. Ct. ___, 2014 WL 4230092 (2014). Therefore, as of October 6, 2014, Virginia began issuing marriage licenses to same-sex couples, and marriages could be performed that same day. Parties to a same-sex marriage can use their marriage certificates to change their names in the same manner as opposite-sex couples. Finally, Virginia law does not provide for civil unions or domestic partnerships, so there is no change in status or need to dissolve these unions or partnerships prior to entering into a same-sex marriage.

BACKGROUND

In Bostic v. Schaefer, 760 F.3d 352, 384 (4th Cir. 2014), the U.S. Court of Appeals for the Fourth Circuit held that Virginia’s statutes and state constitutional amendment prohibiting same-sex marriage was unconstitutional. After the U.S. Supreme Court declined certiorari in Schaefer v. Bostic, ___ S. Ct. ___, 2014 WL 4230092 (2014), the Fourth Circuit Court of Appeals issued a mandate on October 6, 2014, giving effect to the previous ruling holding Virginia’s statutory and constitutional ban unconstitutional. Bostic v. Schaefer, __ F.3d ___, 2014 WL 4960335 (2014). The Attorney General for the Commonwealth of Virginia, Mark R. Herring, also issued a statement on October 6, 2014, indicating that, following the Fourth Circuit’s mandate, marriage licenses for same-sex couples could be issued and that the Commonwealth would recognize all marriages that were lawfully performed in other states. http://www.oag.state.va.us/index.php/component/content/article?id=341

QUESTIONS PRESENTED

We are providing this advice in accordance with the Program Operations Manual System (POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. Section D of RM 10212.035 provides that when a state legalizes same-sex marriages, an opinion from the Regional Chief Counsel should be obtained regarding the following information:

(1) the date the State will begin issuing marriage licenses and certificates to same-sex couples;

(2) whether the State permits parties to the same-sex marriage to change their names based on the marriage;

(3) any change to the status of a prior or new civil union or domestic partnership entered into in the same State; and

(4) whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage.

DISCUSSION

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

As discussed above, Virginia began issuing marriage licenses to same-sex couples on

October 6, 2014. http://www.oag.state.va.us/index.php/component/content/article?id=341 (last visited Oct. 16, 2014). Virginia does not have a waiting period to marry, so same-sex couples were able to marry on that date. See, e.g., http://www.fredericksburgva.gov/index.aspx?NID=1047 (last visited Oct. 16, 2014); http://www.roanokeva.gov/85256a8d0062af37/vwContentByKey/N255RPP2879CFIREN (last visited Oct. 16, 2014).

2) Whether the State permits parties to the same-sex marriage to change their names based on the marriage. Although Virginia has a civil process for a name change in which a party can petition for a court-ordered name change pursuant to Va. Code Ann § 8.01-217 (2014), these formal procedures are not required for a name change following a marriage. Virginia statutes do not expressly authorize a name change following marriage using only the married name and production of a marriage certificate. Nevertheless, in practice, Virginia allows a party to a marriage, whether the bride or the groom, to begin using a new married name immediately after the marriage ceremony. See, e.g., http://www.fredericksburgva.gov/index.aspx?NID=1049 (last visited Oct. 16. 2014); http://www.roanokeva.gov/85256a8d0062af37/vwContentByKey/N255RPP2879CFIREN (last visited Oct. 16, 2014). In addition, the Virginia Department of Motor Vehicles (DMV) permits parties to same-sex marriage to use a marriage certificate to change their names in the same manner as opposite-sex couples. http://www.dmv.virginia.gov/general/#records/update_add.asp (last visited Oct. 17, 2014) (stating that a marriage certificate, including a same-sex marriage certificate can be used as proof for a name change). As such, it is clear Virginia permits parties to same-sex marriage to change their names based upon the marriage in the same manner as opposite-sex married couples.

3) Whether there is any change to the status of a prior or new civil union or domestic partnership entered into in Virginia. Virginia law does not provide for civil unions or domestic partnerships, so this question is inapplicable. In fact, prior to the decision in Bostic, the Virginia State Constitution prohibited the Commonwealth or its political subdivisions from creating or recognizing a legal status for relationships of unmarried individuals that “intends to approximate the design, qualities, significance, or effects of marriage.” VA Const. art. 1 § 15-A. Similarly, the Virginia State Constitution further provided, “Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.” Id.

4) Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage. As Virginia law does not provide for civil unions or domestic partnerships, this question is inapplicable.

Nora R. Koch

Acting Regional Chief Counsel

By:________________

Tara A. Czekaj

Assistant Regional Counsel

A Virginia certificate of marriage is not acceptable evidence of a legal change to the first name. Virginia does not have a statute that expressly allows a first name to be changed in the event of marriage.

QUESTION PRESENTED AND BRIEF ANSWER

Question: On August 18, 2011, you asked whether the agency is permitted to process a first name change for NH S (SSN ) based upon a Commonwealth of Virginia certificate of marriage.

Answer: We have concluded that the agency should not recognize a marriage as a valid name change event in Virginia for a NH wishing to change her first name because Virginia does not have a statute that expressly allows a first name to be changed in the event of marriage.

BACKGROUND

The NH was born “S She married C in Virginia on June. On March 30, 2006, the NH formally changed her name with the agency to “S.” ^[1] She currently resides in California.

On August 15, 2011, the NH filed an SS-5 Application to change her name from “S ” to “T.” To support the name change, the NH submitted a copy of her Commonwealth of Virginia Certificate of Marriage, dated June 6, 1997, and a Commonwealth of Virginia Marriage Register as proof of her marriage to Christopher. The marriage document does not specify the new name to be used by the NH.

Because the marriage took place more than two years ago, the NH submitted the following evidence of identity in addition to her marriage document. See Program Operations Manual System (POMS) Record Maintenance (RM) RM 10212.015D (marriage document may only be used as evidence of identity if the marriage occurred within past two years), RM 10212.020C (where the marriage took place over two years ago, NH must submit evidence of identity in addition to the marriage document). The NH submitted her birth certificate in the name of “S.;” her expired Virginia driver’s license in the name of “T;” her current United States passport in the name of “T;” and her current military identification card in the name of “T.” ^[2] NH’s current California driver’s license, however, is in the name of “Sara.”

We are not aware of any further documentation that she presented with her request. We are also not aware of the NH providing any evidence of a legal name change from “S” to “T.”

DISCUSSION

1. A. 

   General Agency Name Change Procedure

The Intelligence Reform and Terrorism Prevention Act requires the agency to “establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card.” See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B);

POMS RM 10210.001, RM 10210.405. The POMS directs the agency not to process a name change application unless the application is submitted with evidence of a legal name change.

POMS RM 10212.165. Marriage is a recognized name change event. See

POMS RM 10212.010 (setting forth list of recognized name change events, i.e., marriage, divorce, naturalization, court ordered name change, amended birth certificate), RM 10212.055.

Therefore, under current agency policy, the agency will not honor a request to change a name based merely on a common law right to use a new name. See POMS RM 10212.015. The individual must show evidence of a name change event, evidence of a new name, and evidence of the NH’s identity. See id. The POMS provides the illustration of a fictional NH,

Agnes, who requested a replacement card in the name “Annette.”

See POMS RM 10212.165H. In support of her application, Agnes did not provide any evidence of a legal name change to “Annette ,” but her current state identity card showed her name as “Annette .” Id. The agency denied Agnes’s request to change her first name because she did not submit a name change document showing that she legally changed her first name. Id.

1. B. 

   Agency Name Change Based Upon A Marriage Document

The POMS directs the agency to accept a name change document based on marriage as evidence of the new name to be shown on the social security number card, if the new name can be derived from the document. See POMS RM 10212.055. The POMS then qualifies the prior statement and provides a list of acceptable changes to the last name, i.e., the bride takes the groom’s last name, or the groom takes the bride’s last name. Id. Next, the POMS lists an exception to this rule with respect to an entirely new first and last name. POMS RM 10212.055B (Exception). Per Regional Chief Counsel Precedent, an entirely new first and last name as shown on the name change document can be accepted as evidence of a change to both the first and last name where there is a state statute that expressly allows a person to choose an entirely new first and last name in the event of marriage. Id.

For example, Region VII previously addressed a similar issue and advised that a first name change should be analyzed under the relevant state’s statute, as indicated in the exception above. See POMS PR 02712.055. Region VII’s memorandum points out that a first name may be changed if the state statute expressly allows for such a change. Id. ^[3]

The prior version of the POMS included section RM 00203.210B.1, which expressly stated that for United States residents, a legal name change based on a United States marriage is dependent upon the laws of the State where the marriage occurred. Recently, this POMS section was archived and replaced with RM 10212.000, et seq. Current section RM 10212.055 does not make such an explicit statement, but continues to cite to Regional Chief Counsel Precedent, some of which relied upon RM 00203.210B.1. Because the NH’s marriage occurred in Virginia, we have analyzed this issue under Virginia law.

1. C. 

   The Marriage Document Does Not Support NH’s Request To Change Her First Name Under Virginia Law

You have asked whether a NH may change her first name when the name change event is a marriage in Virginia. According to the POMS, all states recognize the validity of opposite-sex marriages performed in other states; therefore, when a person marries in one state and applies in another state to change her name on the agency record, the agency is to assume the marriage is recognized. See POMS RM 10212.025. However, when a legal opinion precedent is required to determine whether the document submitted is acceptable for a name change, the agency does not follow common law. See POMS RM 10212.015. Rather, the agency generally follows statutory law. Id.

The Virginia Change of Name statute does not expressly allow or disallow a couple to take an entirely new name. Va Code Ann. § 8.01-217 (West 2011). The sole reference in the statute to a name change based upon marriage is that a court order “shall not be required of a person who changed his or her former name by reason of marriage and who makes application to resume a former name pursuant to § 20-121.4 [Restoration of Former Name].” The NH would be unable to change her first name under Virginia law by virtue of the marriage, as the Virginia statute does not expressly allow for such a name change. Id. Therefore, the exception in

POMS RM 10212.055B does not apply.^[4]

CONCLUSION

The agency should not recognize the NH’s marriage as a valid name change event in Virginia with respect to her first name because Virginia does not have a statute that expressly provides for such a change in the event of marriage, and therefore the exception set forth in POMS RM 10212.055B does not apply.

Sincerely,

Eric P. Kressman

Regional Chief Counsel,

Region III By:________________

Katie M. Gaughan

Assistant Regional Counsel