Working the System! Playing the “Unavailable” Game

by Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuing series on “working the system” in divorce litigation, we already covered name changes, child support, imputation of income and motions for continuances.   Today’s blog concerns scheduling of depositions, hearings, mediations but the divorce lawyer on the other side of your case seems to continually be “unavailable” to do so.

The divorce lawyer who prepares the motion, or notices the hearing, or sets the mediation, has an obligation to coordinate such an event with opposing counsel.   If opposing counsel, for whatever reason, wants to stall the divorce proceedings, he/she may indicate the unavailability for such an event.  This “unavailable” game can be played to the point of frustrating the attorney trying to get things done, and furthermore, to frustrate the divorce process. 

After several attempts to set a divorce proceeding, to no avail, the recourse is a motion to compel the attorney to schedule whatever it is.  This motion will be heard before the divorce court judge.  If the judge senses shenanigans going on, as in intentional delay, there may be sanctions. 

Why would a divorce lawyer play the unavailable game?  One good example is if a child is living with the mother, and the father is challenging that, the lawyer for the mother might want to keep the litigation going awhile, because his client has what she wants, that being the child living with her.   Another example concerns the marital home.  If the husband is living in the marital home, he might not want to rush to sell the house.  He is living there and the longer he can delay, the better for him.  These are just two examples of how delay can work in a party’s favor.  That is why that attorney might play the unavailable game.

It does work, but only to a point.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at


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