Rothman v. Rothman: Realistic Economic Independence and Domestic-Violence-Related Maintenance in Long-Term Marriages

I. Introduction

The Appellate Division, Second Department’s decision in Rothman v. Rothman, 2025 NY Slip Op 06633 (Nov. 26, 2025), refines New York maintenance jurisprudence in long-term marriages, particularly where:

the dependent spouse is older,
has been largely absent from the workforce for decades, and
suffers physical and mental health consequences from domestic violence inflicted by the monied spouse.

The court holds that, under such circumstances, a five-year post-divorce maintenance term is “unrealistic” as a vehicle for economic independence and extends the maintenance duration to a total of twelve years, with a declining schedule of payments. While largely affirming the trial court’s rulings on equitable distribution, “credits,” and counsel fees, the Second Department squarely exercises its authority to adjust maintenance duration where the lower court’s award does not align with the statutory goals and the actual prospects of self-sufficiency.

The parties, Michele Rothman (plaintiff-appellant) and Alan Rothman (defendant-respondent), were married in 1992 and have two emancipated children. The plaintiff commenced a divorce action in 2016. At issue on appeal were the amount and duration of maintenance, entitlement to portions of business-related assets, credits for certain property or expenditures, and the adequacy of counsel fee awards.

The decision is significant for at least three reasons:

It explicitly connects domestic violence and related health consequences to the need for long-term maintenance.
It emphasizes a “realistic” assessment of a dependent spouse’s ability to achieve economic independence, rather than a formalistic time frame.
It reinforces high evidentiary expectations for parties seeking post-judgment credits or claims of wasteful dissipation of marital assets.

II. Factual and Procedural Background

A. The Marriage and the Divorce Proceedings

The parties married in 1992, had two children (now emancipated), and appear to have operated a “marital business” together in some fashion, with the defendant later developing a “new business” interest post-separation. The plaintiff commenced this divorce action on September 26, 2016, seeking divorce and ancillary relief (i.e., property division, maintenance, counsel fees, and related issues).

A trial was scheduled to commence on March 17, 2020, but was adjourned due to the COVID-19 pandemic. In the pandemic context, the parties made two pivotal procedural choices:

Stipulation on Maintenance Factors: The parties agreed (stipulated) to specific factors that the court would use to determine both the amount and duration of maintenance.
Waiver of Trial and Submission on Papers: In July 2020, they stipulated to waive their right to a traditional trial with live testimony and instead litigate key issues—equitable distribution, maintenance, and claimed credits—via written submissions (“papers in lieu of testimony”).

The Supreme Court, Nassau County (Court Attorney Referee Marie F. McCormack), reviewed the submissions and issued an order on April 24, 2021 (the “April 2021 order”) resolving the stipulated issues.

B. Post-Decision Motion Practice and Judgment

Unhappy with aspects of the April 2021 order, the plaintiff moved pursuant to CPLR 4404(b) to set aside certain portions of that order. CPLR 4404(b) allows a court, following a nonjury trial or submission on papers, to set aside or modify its decision before entry of judgment.

In an order entered November 17, 2021, the Supreme Court denied the plaintiff’s CPLR 4404(b) motion. Thereafter, a judgment of divorce was entered on January 20, 2022. As relevant to the appeal, the judgment:

Directed the defendant to pay maintenance for five years, structured as:
- $12,000 per month for two years;
- $11,000 per month for the following three years.
Declined to award the plaintiff 50% of the alleged value of office furniture, equipment, and scrap metal from the marital business.
Awarded the defendant his business interest in a new business and granted the plaintiff no interest in that new business.
Declined to award the plaintiff a credit for one half of the present-day value of marital stocks.
Declined to award credits to the plaintiff for certain medical expenses and certain sums the defendant allegedly took from the marital business.
Awarded the plaintiff $125,000 in counsel fees.

The plaintiff appealed from the portions of the judgment adverse to her. The defendant did not cross-appeal, so the Appellate Division’s review is largely confined to whether the trial court abused its discretion against the plaintiff’s interests, except as to the maintenance award which the plaintiff challenged.

III. Summary of the Appellate Division’s Decision

The Second Department modified the judgment only with respect to maintenance duration and structure. It:

Affirmed the monthly amounts of $12,000 (for two years) and $11,000 (for three years) but found that a total five-year duration was too short under the circumstances.
Extended maintenance by adding a third tier: an additional seven years at $8,000 per month, thereby creating a 12-year maintenance term.
Affirmed all other challenged aspects, including:
- denial of credits regarding:
  - alleged present-day value of marital stocks,
  - debts paid to the defendant’s brother (alleged wasteful dissipation), and
  - out-of-network medical expenses;
- the distribution of business assets (including the defendant’s new business interest);
- the $125,000 award of counsel fees to the plaintiff.

The court emphasized the long-term nature of the marriage, the plaintiff’s age (57 at the time of submissions), her approximately 20-year absence from the workforce, and her physical and mental health problems—which were, in part, the result of domestic violence perpetrated by the defendant. Based on these factors, it held that five years of maintenance did not realistically permit her to achieve economic independence.

As modified, the judgment was otherwise affirmed, and costs on appeal were awarded to the plaintiff, reflecting that, although she did not prevail on every issue, she achieved a substantial enhancement of her financial support.

IV. Detailed Legal Analysis

A. Maintenance (Spousal Support)

1. Statutory and Doctrinal Framework

Maintenance (post-divorce spousal support) in New York is governed principally by Domestic Relations Law (DRL) § 236(B)(6). Since statutory reforms, New York uses:

a guideline formula to calculate an initial maintenance amount (subject to adjustment), and
guidelines and factors to determine the duration of maintenance.

DRL § 236(B)(6)(e)(1) and (f)(2), cited in the opinion, address:

the factors allowing deviation from strict guideline calculations, and
the factors relevant to determining how long maintenance should last, including:
- length of the marriage,
- age and health of the parties,
- present and future earning capacity,
- standard of living established during the marriage,
- reduced earning capacity from time out of the workforce for childrearing or other marital roles, and
- domestic violence and its impact on the spouse’s earning capacity and well-being.

The articulated goal, consistently reaffirmed in case law, is to give the maintenance recipient a fair opportunity to achieve “economic independence” and become “self-supporting” within a realistic timeframe.

2. Appellate Standards and Precedents Cited

The Appellate Division invokes several significant precedents to frame its authority and the underlying principles of a maintenance award:

Bari v Bari, 200 AD3d 835 (2d Dept):
Cited for the basic standard: the amount and duration of maintenance are committed to the “sound discretion” of the trial court, with each case resolved on its own facts. Bari also guides the court’s rejection of claims of wasteful dissipation of marital assets, requiring proof that the monied spouse squandered marital property.
Fishman v Fishman, 186 AD3d 1199 (2d Dept):
Reiterates that maintenance determinations are fact-specific and rest on discretion. It also reinforces that a maintenance award’s purpose is to help the dependent spouse transition to self-sufficiency while considering factors such as the marital standard of living and disparate earning capacities.
Kattan v Kattan, 202 AD3d 771 (2d Dept):
Explicitly states that “the overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.” This language is quoted almost verbatim in Rothman, underscoring that time to self-sufficiency—not an arbitrary term—is the touchstone.
Zehner v Zehner, 186 AD3d 784 (2d Dept):
Cited for two distinct propositions:
- The Appellate Division’s authority on maintenance is “as broad as that of the trial court,” empowering it to modify maintenance awards rather than merely remanding.
- It illustrates when and how the appellate court will adjust maintenance awards that do not align with statutory factors or realistic self-sufficiency expectations.
Duval v Duval, 144 AD3d 739 (2d Dept); Carroll v Carroll, 125 AD3d 710; Turco v Turco, 117 AD3d 719:
These decisions collectively emphasize considering:
- length of the marriage,
- age and health of the dependent spouse,
- time spent outside the workforce, and
- the ability (or inability) to regain earning capacity.
They support the idea that long-term marriages often justify longer-term maintenance, particularly where the dependent spouse is older and has been out of the labor market for many years.

By invoking these precedents, the court justifies both its willingness to intervene and the specific contours of its modification.

3. Application in Rothman: Why Five Years Was “Unrealistic”

The court first affirms that the initial five-year maintenance structure—two years at $12,000 per month and three years at $11,000 per month—was within the trial court’s discretion as to amount. It then turns to duration and concludes the trial court “improvidently exercised its discretion” in limiting maintenance to only five years.

Key factual findings and considerations:

Length of the marriage: Married since 1992, the parties’ marriage spanned more than two decades, placing it in the “long-term” category.
Age of the plaintiff: She was 57 at the time of submissions, making re-entry into the workforce substantially harder, especially after a long absence.
Time out of the workforce: The plaintiff had been “largely absent from the workforce for almost 20 years,” presumably in domestic and/or supportive roles within the marital enterprise.
Health conditions: The plaintiff suffered physical and mental health issues, some of which were explicitly linked to “the defendant's infliction of domestic violence upon the plaintiff.”
Pre-divorce standard of living: The court considers the standard of living maintained during the marriage, which the maintenance should help approximate, within reason, especially in the early post-divorce years.

Based on these factors, the court states:

“[I]t was unrealistic to believe that the plaintiff would be able to achieve a level of financial independence that would eliminate her need to rely on the defendant's support after only 5 years.”

This is the key doctrinal move: the court links the statutory goal of economic independence to a realistic timeframe informed by age, health, work history, and domestic violence. In other words, “economic independence” is not a formal abstraction but must be grounded in the actual, foreseeable prospects of the dependent spouse.

4. The Modified Maintenance Award

Using its broad authority, the Appellate Division does not simply remand for reconsideration; it specifies a new schedule:

First 2 years: $12,000 per month;
Next 3 years: $11,000 per month;
Additional 7 years: $8,000 per month.

Thus, the duration is extended from 5 years to a total of 12 years, with a gradual decline in the monthly amount. That decline reflects an expectation of progressive, if limited, improvement in the plaintiff’s financial independence, without assuming a full break from support after a short transition.

The court explicitly grounds this modification in DRL § 236(B)(6)(e)(1) and (f)(2) and the precedents Zehner, Duval, and Turco. Although the opinion does not discuss numerical guideline percentages, the resulting 12-year term is broadly consistent with guideline concepts that suggest longer maintenance for longer marriages—particularly those exceeding 20 years—while also recognizing that domestic violence and health problems may justify being at, or slightly above, the higher end of those advisory ranges.

5. The Emerging Principle

While Rothman does not announce a wholly new rule, it crystallizes and reinforces a key principle:

In a long-term marriage where the dependent spouse is older, has been substantially absent from the workforce, and suffers health problems connected to domestic violence inflicted by the monied spouse, a short-term maintenance award (here, five years) may be deemed “unrealistic” and an abuse of discretion, warranting a substantially longer maintenance duration.

This principle concretely operationalizes the statutory directive to consider domestic violence and its impact on earning capacity as part of maintenance duration analysis.

B. Equitable Distribution and Property-Related Issues

1. General Principles and Key Precedents

New York follows the doctrine of equitable, not necessarily equal, distribution of marital property under DRL § 236(B)(5).

The court reiterates settled law:

Novick v Novick, 214 AD3d 995:
The trial court has “broad discretion” in making equitable distribution determinations. Appellate courts will not disturb those determinations absent an abuse of discretion—i.e., unless the court “improvidently exercised” its discretion.
Repetti v Repetti, 147 AD3d 1094:
Equitable distribution rests on the idea that marriage is, among other things, an “economic partnership” to which both spouses contribute in varying formes—wage earner, homemaker, parent, etc. Contributions need not be financial to be recognized.
Mahoney-Buntzman v Buntzman, 12 NY3d 415 (Court of Appeals):
The court cautions that courts should not “second-guess the economic decisions made during the course of a marriage,” but should equitably distribute the assets and obligations remaining when the marriage ends. The focus is on fair allocation at dissolution, not retrospective critiques of spending or investment choices, absent clear waste or fraud.
Aloi v Simoni, 82 AD3d 683:
Emphasizes the importance of adequate evidentiary support for equitable distribution claims; alleges that without sufficient proof on value or entitlement, credits or property adjustments cannot be granted.

These cases underscore that appellate review in the equitable distribution context is deferential: absent a clear abuse, the trial court’s fact-sensitive balancing will be left intact.

2. Marital Business Property and New Business Interests

The plaintiff sought, among other things, 50% of the alleged value of office furniture, equipment, and scrap metal associated with the marital business. The trial court declined to award such a share, and the Appellate Division does not disturb that determination.

While the opinion does not elaborate on the evidence, the likely reasoning is:

either the plaintiff failed to prove actual value or marital ownership of specific items, or
the items were de minimis in value and fully accounted for in other distributions.

Similarly, the defendant’s interest in a “new business” was awarded entirely to him, with the plaintiff receiving no interest. Here, the timing of acquisition is legally significant: property acquired after the commencement of the divorce action is typically separate property unless marital funds or assets were diverted to create it. The appellate opinion implies that either:

the new business was formed post-commencement using the defendant’s separate efforts and/or funds, or
the plaintiff failed to present persuasive evidence that marital resources were improperly channeled into the new business so as to render it (in whole or in part) marital property.

In either case, the Appellate Division saw no abuse of discretion in the trial court’s disposition of these business-related interests.

3. Credits for Marital Stocks and Alleged Wasteful Dissipation

The plaintiff requested:

a credit for one half of the present-day value of marital stocks, and
a credit for one half of a debt paid to the defendant’s brother, allegedly constituting wasteful dissipation of marital assets.

The court rejected both claims:

Marital stocks: The court held that there was “insufficient evidence” to allow it to award a credit for one half of the present-day value of the stocks. Under Aloi v Simoni and similar cases, a party seeking such a credit must provide clear proof of:
- the existence of the marital asset,
- its value (here, present-day stock value), and
- their entitlement (e.g., a 50% share).
Without sufficient records, expert valuation, or coherent proof, appellate courts will affirm the denial of such credits.
Debt to defendant’s brother / wasteful dissipation: The court found insufficient evidence that the defendant engaged in “wasteful dissipation of marital assets.” Under Bari v Bari, a spouse claiming dissipation must demonstrate that the other party deliberately squandered marital property to deprive the claimant spouse of their fair share. The mere payment of a debt to a relative, without more, does not prove dissipation; it may represent repayment of a legitimate obligation. The court thus upheld the denial of this credit.

4. Medical Expenses and Health Insurance

The defendant had been paying the plaintiff’s health insurance premiums. The plaintiff additionally sought reimbursement for certain medical expenses incurred when she used an out-of-network provider.

Citing Hills v Hills, 240 AD2d 706, the court held that the defendant was not required to reimburse those out-of-network expenses. The rationale is straightforward: where a party provides health insurance, they are not typically obligated to cover elective additional expenditures outside the coverage network, absent specific agreement or court order. The plaintiff’s choice to use out-of-network providers does not, by itself, impose a reimbursement duty on the insured spouse.

C. Counsel Fees

1. Governing Standards and Precedents

Awards of counsel fees in matrimonial cases in New York are largely governed by DRL § 237 and developed case law. The Appellate Division cites:

Habib v Habib, 227 AD3d 874:
Counsel fees are awarded in the court’s sound discretion, considering:
- the equities and circumstances of the case,
- the parties’ respective financial conditions, and
- the relative merit of their litigation positions.
Hutchinson v Hutchinson, 219 AD3d 1320:
A court may consider whether either party engaged in conduct or took positions that caused delay or unnecessary litigation, which may justify shifting additional fees onto the offending party.

New York courts often presume that the monied spouse should contribute to the non-monied spouse’s legal fees to level the playing field, but the actual amount remains discretionary and fact-driven.

2. Application in Rothman

The plaintiff was awarded $125,000 in counsel fees. On appeal, she presumably sought a higher fee award, arguing that her circumstances and the financial disparity warranted more. The Appellate Division, however, found that, considering:

the parties’ respective financial conditions,
their conduct during litigation, and
the overall equities,

the trial court “providently exercised its discretion” in limiting counsel fees to $125,000. No abuse of discretion was found. This reinforces a common theme: appellate courts are reluctant to second-guess fee awards unless there is a clear misapplication of law or glaring inequity.

D. Procedural Aspects: Submission on Papers and CPLR 4404(b)

1. Waiver of Trial and Decision on Submissions

Because of COVID-related disruptions, the parties waived a traditional trial and agreed to litigate key issues on submissions—affidavits, documentary evidence, and written argument—in lieu of live testimony. While this shifts the mode of fact-finding, the underlying legal standards remain the same: the court still makes credibility and factual determinations, but based on the written record.

On appeal, the Appellate Division treats this as functionally equivalent to a nonjury trial for review purposes. The use of paper submissions does not insulate the trial court’s determinations from appellate correction where discretion is misapplied, as illustrated by the modification to maintenance.

2. CPLR 4404(b) Motion to Set Aside

CPLR 4404(b) allows a court, after a bench trial or decision on submissions, to set aside or modify its decision “on the law and the facts” before entry of final judgment. The plaintiff used this mechanism to challenge portions of the April 2021 order.

The trial court denied that motion, essentially reaffirming its original determinations. On appeal, the Second Department’s decision to modify maintenance indicates that:

the denial of the CPLR 4404(b) motion was erroneous, but only as to the duration of maintenance; and
for all other contested issues, the motion was properly denied and the underlying determinations sound.

V. Complex Legal Concepts Simplified

1. Maintenance vs. Child Support

“Maintenance” (formerly “alimony”) is post-divorce support paid by one spouse to the other. It is distinct from child support. Here, the children were emancipated, so the only support at issue was spousal maintenance.

2. Equitable Distribution (Not Always 50/50)

“Equitable distribution” means fair distribution, not necessarily equal. Courts consider multiple factors—including income, contribution as homemaker, duration of the marriage, age, and health—to decide who gets what portion of marital property. A 50/50 division is common but not automatic.

3. “Wasteful Dissipation” of Marital Assets

“Wasteful dissipation” occurs when one spouse intentionally or recklessly spends, gives away, or hides marital assets to deprive the other spouse of their fair share (for example, gambling away marital funds, gifting valuable marital property to a third party without justification, etc.). A spouse alleging dissipation must prove it with evidence; mere dissatisfaction with past spending will not suffice.

4. “Credits” in Equitable Distribution

A “credit” is an adjustment in the equitable distribution scheme, compensating one spouse for something the other did or did not do. Examples include:

a credit for marital funds used by one spouse after commencement of the divorce action,
a credit for paying marital debts, or
a credit for property unaccounted for by the other spouse.

To receive a credit, the requesting spouse must supply clear, competent evidence of the amount and the basis for entitlement.

5. “Provident” vs. “Improvident” Exercise of Discretion

When the Appellate Division says a trial court “providently exercised its discretion,” it means the lower court acted within the bounds of its lawful discretion—even if another reasonable judge might have done something slightly different. An “improvident” exercise occurs when the decision falls outside reasonable bounds given the facts and law, as with the five-year maintenance term in this case.

6. Economic Independence and Self-Supporting

“Economic independence” and being “self-supporting” do not necessarily mean matching the exact marital standard of living, but they do mean:

being able to meet one’s reasonable needs,
in light of age, health, and realistic earning capacity,
within a timeframe that is plausible given the person’s circumstances.

Rothman underscores that courts must assess whether the maintenance period truly allows for this transition, not merely whether it looks reasonable in the abstract.

7. Domestic Violence as a Maintenance Factor

Recent statutory amendments and evolving case law require courts to consider domestic violence not only in fault-based divorce grounds but also in:

equitable distribution, and
maintenance (amount and duration).

Domestic violence can:

damage a victim’s mental and physical health,
interrupt or prevent career development, and
undermine long-term earning capacity.

In Rothman, the court expressly connects domestic violence inflicted by the defendant to the plaintiff’s health problems and uses that connection as a factor justifying longer-term maintenance.

VI. Impact and Future Implications

A. Maintenance in Long-Term, Domestic-Violence-Affected Marriages

Rothman reinforces a growing line of cases that:

reject overly optimistic or compressed maintenance durations for older, economically dependent spouses,
take seriously the impact of decades-long absence from the workforce on a spouse’s ability to become self-supporting, and
integrate domestic violence and its long-term effects into the maintenance analysis, not merely as a background fact.

Practitioners representing dependent spouses in similar circumstances can now more confidently argue for:

longer maintenance durations, especially where:
- the marriage is long-term,
- the client is near or beyond middle age,
- the client has significant health issues, and
- domestic violence played a role in derailing career or health.

Conversely, monied spouses must recognize that courts will not assume a rapid path to independence under such conditions and may impose extended support obligations.

B. Appellate Oversight of Maintenance Duration

By explicitly stating that its authority over maintenance is “as broad as that of the trial court” and then lengthening the maintenance term to twelve years, the Second Department signals robust appellate oversight over maintenance awards. Where the lower court’s duration does not reflect statutory factors and realistic prospects, the Appellate Division will intervene directly and set specific terms rather than remand for reconsideration.

C. Evidentiary Rigor for Credits and Alleged Dissipation

The decision also underscores an evidentiary lesson:

Parties seeking credits for alleged present-day values of marital assets (like stocks) must provide clear proof of ownership, current value, and entitlement.
Claims of wasteful dissipation require concrete evidence of wrongful, wasteful behavior; speculation or suspicion is not enough.

Future litigants should be prepared with documentation (brokerage statements, expert valuations, loan records, etc.) to avoid the fate of unsupported claims being summarily rejected.

D. Stability in Equitable Distribution and Counsel Fee Jurisprudence

Rothman largely stabilizes rather than innovates in the areas of:

equitable distribution of business interests and minor assets; and
counsel fee awards.

The Second Department reiterates its deferential standard and leaves most trial court decisions intact. This continuity provides predictable guidance: barring clear factual error, legal misapplication, or dramatic inequity, appellate courts will not disturb equitable distribution or counsel fee determinations.

VII. Conclusion

Rothman v. Rothman is a notably instructive decision at the intersection of long-term marriage, domestic violence, and realistic economic independence in maintenance law. Its key contributions include:

A clear statement that a five-year maintenance period may be “unrealistic” for a 57-year-old spouse, absent from the workforce for nearly 20 years and suffering from domestic-violence-related health issues.
An affirmation of the Appellate Division’s broad authority to adjust both the amount and duration of maintenance when necessary to achieve statutory objectives.
A practical illustration of how DRL § 236(B)(6)(e)(1) and (f)(2) are applied, especially in considering domestic violence and health as central maintenance factors.
A reaffirmation of high evidentiary standards for claims of credits and dissipation in equitable distribution, and a deferential approach to counsel fee awards.

In the broader legal context, Rothman strengthens the principle that maintenance awards must be grounded in the real-world capacities and constraints of the dependent spouse, not mere theoretical possibilities. It confirms that domestic violence is not only a moral and criminal wrong but also an economic factor with concrete implications for long-term post-divorce support. As such, the decision is likely to be cited in future cases where courts must calibrate maintenance awards to the complex intersection of age, health, work history, and abuse dynamics in long-term marriages.