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MARSH v. MARSH8/9/1993
ineated exceptions. S.C. Code Ann. § 20-7-473 (Supp. 1992). We recognize other states with similar statutes have nevertheless applied the analytic approach. See, e.g., Johnson, supra; Mistler,
As noted by other courts, the terms mechanistic and analytic are misleading. McNerney supra. The determination of whether property is marital or non-marital is but the first step in the process of equitably dividing the assets of the parties in a divorce action. Once the value and the status of the various assets as marital or non marital have been determined, the family court must then consider a host of factors relevant to the equitable division of the property deemed marital. S.C. Code Ann. § 20-7-472 (Supp. 1992) (codification of the factors previously applied by common law). These factors include the contributions of each spouse to the acquisition of the property, earning potential of both spouses, the health — both physical and emotional — of each spouse, among any other relevant factors. Id. § 20-7-472(3)(4)(5)(15). Accordingly, recognition of the award or settlement as marital property does not mean the proceeds of the award must be divided and a portion awarded to the non-injured spouse. To the contrary; the family court may, and in many cases probably should, award the proceeds entirely to the injured spouse. Accord In re Marriage of Burt, 144 Ill. App.3d 177, 98 Ill. Dec. 746, 494 N.E.2d 868 (1986); Richardson v. Richardson, 139 Wis.2d 778, 407 N.W.2d 231 (1987). We emphasize the family court is not required to divide all marital property between the spouses based on the same percentage of division. For example, the court could divide the general marital property equally between the two but award the
While non-marital property is to be considered in the equitable division of marital property, the family court does not have jurisdiction to apportion non-marital property. S.C. Code Ann. §§ 20-7-472 & 473 (Supp. 1992). Classifying the property as marital merely gives the family court the authority to divide the award as the equities presented in the particular case may require. For example, the award or settlement may be the only asset of the marriage. The injured spouse who has collected against his or her tortfeasor or another liable party may be in better health and financial status than the other spouse who may have no responsible party from whom to collect. See Raccio, supra (wife who failed to pursue
Our well-developed statutory and common law of equitable distribution is premised on providing the family court the flexibility to view each case based on the individual circumstances peculiar to the parties involved and to fashion a division of the parties' assets in a manner that is uniquely fair to the parties concerned. We find the analytic approach would frustrate this policy. Accordingly, we hold proceeds of a
HARWELL, C.J., and CHANDLER, FINNEY and MOORE, JJ., concur.
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