The Most Important Thing to Know about Divorce Court

In my book, War or Peace, I tell the stories of what happened in court on my watch. Here is what happens when you ask a judge, who doesn’t know you or your kids, or share your values, to make decisions that will impact you for the rest of your lives.

War Or Peace
War Or Peace

John Hammond was nineteen when he first walked into my office, some twenty years ago. He was a gangly, sandy-haired kid dressed in jeans and a t-shirt despite the chill January. His flip flops flapped against his insteps as Valerie conducted him down the hallway into the conference room. He had brought his father, a tall silver-haired man dressed in a dark suit and red tie.

I had opened my law practice six months earlier, when I was already fourteen years in the profession, practicing law in various law firms, and, at one point, teaching law full-time as a professor at Stetson University College of Law.

Stetson Law School
Stetson Law School

It was a lawsuit that brought them to see me. They were both upset, but I think John’s father, Adrian, was more perturbed. He was worried, when John professed ignorance of what the litigation was about, that his son was lying.

While John was a sophomore at the University of Florida, his car was towed. He emerged from class one day to find it gone, vanished from his paid parking slot. Fresh-faced and naïve, he tried to retrieve it from the impound lot. The faceless clerk told him it would cost $2500, $500 more than he had paid for it the month before. “Your car was levied on to satisfy a final judgment entered against you.”

John was stymied, so he did what any normal American kid would do; he called his dad. He had no idea what the lawsuit was about, nor did his father. They wanted me to find out and fix it.

The file was thin but I reviewed it carefully. It appeared that a complaint had been filed against John in small claims court for damage done to a motor vehicle he had rented. The complaint was brief, just one short claim for breach of contract. The car rental company, a business called Rent-A-Ruin, had obtained a judgment against him for the damage when he failed to answer their complaint.

Why had John not answered it? I made an appointment to discuss it with him. He returned with his father.

“John, have you ever heard of a company called Rent-A-Ruin?”

John turned towards me. “Yeah, I think that was the place I rented a car from to go up to school after summer break. It broke down about halfway back to Gainesville. I had to thumb my way back from there.”

My first thought was that this poor kid had not had the sense to contact the leasing company to report the problem with the vehicle. Silly me! John had called the Rent-A-Ruin customer service desk as soon as he arrived back at school. (No mobile phones back then, at least not for college kids.)

“What did they tell you?”

“The lady said not to worry, she would send somebody to pick up the car right away.”

“Did you get her name?”

He had not, but that wasn’t really the problem. The file demonstrated what the real problem was, at least initially. Although John had never been notified that a lawsuit had been filed against him, a process server had filed an affidavit, confirming he had served John with the complaint for damages to the vehicle. Because John had never answered, the court had entered a default judgment against him.

I pulled out the service of process form completed by the process server, whose name I did not recognize, and handed it to John. “Do you know the address where you were supposedly served?”

”Of course I do. I worked there last summer. It’s the Macaroni Grill on North Dale Mabry.”

Macaroni Grill
Macaroni Grill

“And you’re telling me that you were never served?” I pointed to the complaint still sitting on the edge of my desk before him.

“No!” He examined it closely. “I’ve never seen this before.”

I filed a motion to set the final judgment against John aside. He had never been served with the complaint, but I still had to find out what had really happened.

As it turned out, John had allegedly been served while working as a waiter at the local restaurant. It was a summer job. He was no longer working there by the time the complaint had been served. He had already returned to Gainesville for the fall semester, driving the rented “ruin” at least part of the way.

I went to lunch. There was a Macaroni Grill just down the street from my office, but I wasn’t interested in the food. I drove to the restaurant where my client had spent the summer and asked for the manager. He soon appeared and I invited him to join me at my table.

I interviewed him. He was new, but had been there on the date the complaint was served and already knew the story; he clarified that it had been another employee who had actually been served, another waiter whose first name was also ”John.”

Thankfully, John Adams happened to be on shift while I was meeting with his boss. The manager called him over.

Adams informed me that, at the end of September the year before, he had been called to the front of the restaurant by the hostess. The hostess, a pretty young thing, had gestured to an unremarkable middle-aged guy who stood there with a sheaf of papers in his hand. “He wants to talk to you.”

”Can I help you?” John had asked.

”Are you John?” the man abruptly replied, without bothering to introduce himself.

“Yes, I am. How can I help you?”

Instead of responding, the stranger handed him the sheaf of papers and announced, without further explanation, “You are served.”

He immediately inspected the documents and realized the man being sued was a different “John.” He had called the attorney who had signed the complaint, as the subpoena suggested, using the phone in the manager’s office, and had notified him that he was not the John Hammond who was being sued. According to him, the attorney had callously replied, “Too bad.” At that point, the eighteen-year old, having done all he could, had hung up the phone and dismissed the matter from his mind. He didn’t know Hammond and he wasn’t in trouble. In fact, he’d never met my client, having been hired after John had returned to Gainesville.

The attorney went ahead and obtained a judgment against my client, who only discovered this fact when his car was seized.

The judge granted my request for an evidentiary hearing on our motion to set the judgment aside because of the mistake. At the hearing, I introduced four witnesses: my client, who testified that he had never been served; Adams, who testified that he had been served and had called the lawyer to put him on notice that he was not the person named in the complaint; the prior manager of the Macaroni Grill, who had been in charge the summer that Hammond was employed; and the current manager, who had taken over at the end of the summer, had employed Adams, and had suggested that Adams call the attorney to explain the situation when he was mistakenly served.

Of course, the attorney for Rent-A-Ruin put the process server on the stand, but he only testified that he served the papers on the person who responded when he went to the place of employment and asked for “John.” He explained that he serves dozens of people every day and can’t be expected to remember them all. Nor did we; that’s why the affidavit.

If there was ever a slam-dunk, this was it. The judge would have to grant the motion to set aside and permit my client to defend the suit against him for breach of contract. He would be allowed to explain that the rental car had broken down before he reached school.

At the end of the hearing, the judge ruled; “I deny the motion.” My mouth fell open. She admonished my witnesses, words forever etched into my aural memory: “I find that you people are mistaken, and that John Hammond was, in fact, served with the complaint.”

Adrian, who had witnessed the entire hearing, joined us as we filed out of the courtroom, appalled. Thank goodness he had seen it for himself. I couldn’t explain what had happened. They both knew that if there was ever a black & white case, this was it. But we had still lost.

It was years later that I discovered that the judge, the lawyer for Rent-A-Ruin, and the process server were all good friends. The lawyer and the process server appeared regularly in the judge’s courtroom.

The judicial system is administered by human beings; human beings work in it and on it, and it is therefore permeated with human error and other less admirable traits. If you imagine that it is fair and impartial and just, and that you will always get the right result, then you are sadly mistaken.

Don’t put your divorce in the hands of a judge who may be having a bad day. Use the collaborative method, and settle whatever differences you may have outside the courtroom, where you can still control the process, and where you’ll marvel, like my clients, at the experience and the results!

What Our Clients Say


Popular Articles

Bringing the Magic

I had a case in which I was retained, not for a collaborative matter, but for litigation. (Back then, I still had the reputation for being “an aggressive family law trial attorney.”)

Read More »


The defining quality of collaborative dispute resolution practice is trust, don’t you agree? As collaborative professionals, we trust the process;

Read More »

Share This Post