Can a Husband Take a Family Car During a Divorce?

By Heather Frances J.D.

Toy house, car and cash with engagement ring

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When couples divorce, they must split their property, including assets like cars, bank accounts and the family home. Spouses generally have equal rights to their marital assets until a court says otherwise. However, many states issue automatic temporary restraining orders, or ATROs, that keep spouses from taking assets, including cars, while the divorce is pending. Once a court enters an order addressing property division, including vehicles, the spouses must follow that order.

Marital vs. Separate Property

Each state sets its own rules for property division, but generally give divorce courts authority to divide marital property, which is property acquired by either spouse during the marriage. Spouses typically can keep their separate property, which is property acquired before the marriage or by gift or inheritance during the marriage. Thus, if the vehicle belonged to your husband before your marriage, he will likely get to keep it. Courts do not rely on which spouse's name is on the vehicle's title, however. If the vehicle was purchased during the marriage, it will likely be considered marital property even if only one spouse's name is on it.

Splitting Your Assets

Spouses can decide for themselves how to split their assets in a divorce, so you and your spouse can agree to a property division that works best for both of you. Generally, judges adopt such agreements, sometimes called settlement agreements, as the court's ruling. This makes them enforceable later as part of the divorce decree. You and your spouse can agree to let him keep the family car while you keep another similarly valued asset. If you and your spouse cannot agree about how to split your property, the court will decide for you.

Divorce Decree and Temporary Orders

Since property is not actually split until your divorce is final, your vehicles can remain jointly owned until a judge issues your divorce decree. If you need a decision about your vehicles and other property before your divorce is completed, you can ask the court for temporary orders addressing key property issues.

Many courts use standing orders -- automatic temporary restraining orders -- that are issued in every divorce case. ATROs prohibit both spouses from selling personal property like a vehicle or taking other significant financial actions while the divorce is pending. These orders are often automatic, meaning the order is issued automatically as soon as one party files the divorce petition. Even when courts do not automatically enter such orders, they may be available upon request.

Auto Loans

If your vehicle was purchased with a loan, your divorce decree or settlement agreement can also address who pays the remaining debt. For example, if you and your spouse both signed the loan paperwork, you both remain liable to pay the loan even if your spouse gets the vehicle as part of the property settlement. To avoid this problem, your divorce decree can order your spouse to refinance the loan in his name only or order the vehicle to be sold with the proceeds split between you and your spouse.