Last Updated: January 6, 2023
Property division in divorce covers everything including the household vehicles. Many spouses have special attachments to their cars or rely on these vehicles for transportation to and from work or school or driving the kids around. One of the most common questions divorce attorneys come across is a client asking whether I can keep my car when I get divorced. The answer isn’t as simple as it sounds like it should be. Frequently, a car is one of the most expensive purchases that many couples make during their marriages (outside of real estate). Determining who gets to keep it is a big decision that can be made easier after getting a free consultation with an attorney.
Will I Keep My Car When I Get Divorced?
Family law attorneys help divorcing couples determine how their property will be divided. When it comes to the car, things can go in several directions. If one spouse entered the marriage with the vehicle, either owning it outright or making all the loan payments, the car is ordinarily initially considered nonmarital property. This means that the vehicle should remain owned solely by that individual. In most cases, this spouse will get to keep the car after the divorce.
Keep in mind that if the majority of the payments (or a large chunk of payments) were made during the marriage, the property is not all nonmarital and thus, subject to division between the spouses. Every dollar earned during the marriage is marital. So, it goes without saying, that marital funds (income earned during the marriage) to pay for something makes the paid for property (here, a car), marital (or partially marital). This is the type of situation that a divorce lawyer will typically need to negotiate over to reach a final settlement agreement.
Can I Keep My Car When I Get Divorced if Purchased During Marriage?
If the car was purchased during the marriage and spouses shared relevant financial responsibility, it is considered marital property in divorce. How it will be handled depends on the state of residence. Most states follow common law property rules, which specify that if property is in the name of both spouses, each is considered a joint owner. This is known as the ‘equitable division of property.’ Equitable, in the majority of US states, means “fair” under the circumstances. Therefore, if the car title contains both names, the couple or the court will determine who receives it.
But watch out – just because a vehicle only has one spouses name on it, that does not mean it isn’t marital property. A vehicle purchased during the marriage is marital regardless of who has their name on title because it was purchased with marital funds (income / money) earned during the marriage.
Several states (mostly states in the southwest) follow community property laws, which state that assets acquired during a marriage are community property while assets acquired prior to the union are owned by the individual who acquired them. Therefore, a spouse who purchased a car before getting married would be the owner of the vehicle and permitted to retain it after divorcing (so long as it was paid off before the marriage). However, if the car was purchased during the union, each spouse is considered an equal, 50 percent owner, even if only one spouse’s money was used to buy the car.
In community property states, nonmarital property can become marital property in divorce. For example, a spouse could transfer the title of his or her car to the other spouse or make that spouse a joint titleholder. However, a spouse may not transfer a whole piece of community property unless the other spouse agrees to this.
What If We Have 2-Cars?
Many couples that live outside of a city with extensive public transportation have a car for each spouse (sometimes even more than 1 for each spouse). In these instances, judges normally like to try to have each person keep his/her own car and force the spouses to refinance or transfer title to each other so that each person owns 1-car each. Of course, when the values and amount owed on vehicles is similar, this works out fine. The problems that normally come up are when 1-car has a lot of equity (or value) and another car doesn’t
Real Life Example of Who Keeps What Car:
Take this for example: wife drives a 3-year-old suburban, paid off. The suburban is likely worth $45,000 still, maybe more, even! With no car loan, she essentially has $45,000 of assets all by herself with the vehicle. The wife, obviously, will ask her lawyer, “can I keep my car when I get divorced, or will I have to pay my husband money to keep it?” Now, the husband has a vehicle that he just purchased, and it is worth $50,000 but has a loan for $45,000 still. Is it fair to give the wife the paid off car and the husband a huge loan with almost no equity? Probably not. Again, divorce lawyers would use the differences in value to negotiate over other pieces of property, assets, or debts to still get it were each person keeps their own car. But this is where things can get very tricky.
Whether the couple lives in a common law or community property state, property division in divorce is not a simple process. And harder still, is the issue of whether a lawyer can tell their client yes when asked if I keep my car when I get divorced. Getting legal representation from a family law attorney prevents a spouse from being taken advantage of when property decisions are made. A spouse can walk away with a car brought into the marriage or some money in exchange for the ownership share of a marital vehicle, or a lawyer can negotiate a trade. Speaking with a divorce attorney to find out the answers here with a free consultation is the first, smart step to take.