The easiest way to get the use and possession of any asset during a divorce is usually to negotiate a resolution with your spouse. This keeps the outcome out of the court’s hands -- most judges will approve a settlement agreement between you provided it’s not unconscionable or grossly unfair. You can agree to temporary possession of your car during your divorce proceedings or to a permanent arrangement that is incorporated into your final divorce decree. If you can’t reach a mutual agreement, you can ask the court to rule on a temporary or permanent order.
If the Automobile Is Marital Property
If you ask the court for possession of the vehicle, the judge’s decision will depend to some extent on whether your car is marital property. It’s probably marital property if you purchased it with marital money during your marriage, regardless of whose name appears on the title, registration or loan. If it’s marital property, it will be included in the pool of property and assets that must be divided in your final divorce decree, and you can ask the court for temporary possession of the vehicle until your divorce is final. You have as much right to the use of the car during the divorce proceedings as your spouse does.
If the Automobile Is Your Separate Property
If the automobile is your separate property, this changes the picture. The court will probably rule that it’s your separate property if you purchased it before you got married and never used marital money or income to make car payments. If someone gave you the car or you inherited it, this also makes it your separate property in most states. Depending on where you live and your state’s laws, the court might also consider the auto your separate property if you purchased it during the marriage but with separate income, such as proceeds from a personal injury settlement, inheritance or money acquired from selling another premarital asset. Your spouse has no right to your separate property in a divorce, so you should retain possession of the car during the proceedings.
If There Is a Loan Against the Vehicle
If you and your spouse bought the vehicle jointly and there’s still a loan against it, this must be accounted for in your final decree. In most cases, the spouse who gets the vehicle also gets the car payment, but third-party creditors aren’t bound by the terms of your divorce decree or settlement agreement. If you took the loan out jointly, the lender can pursue either of you for payment regardless of the terms of your decree or agreement. You can address this problem by agreeing to refinance the loan in your own name, and the court will probably order you to do so if the judge gives you the car in the divorce.
If the Auto Loan Is Paid Off
If the car is a marital asset, its value must be factored into the overall division of marital property when your divorce is finalized. If you get ownership of the automobile and the loan against it is paid off, your spouse would typically receive another asset of equal value. If you have two vehicles but the one you want to keep is worth more than the one your spouse is taking, the difference in value must be accounted for. If your car is worth $15,000 but his beat-up old truck is only worth $5,000, you may have to surrender other property worth $5,000 to him or give him a $5,000 cash payment for his half of the $10,000 difference in value.