Oregon law provides for a number of types of “writs,” or orders issued by a court requiring that something be done or giving somebody else authority to do a specified act. In family law matters, sometimes lawyers or parties will employ the use of a “Writ of Assistance,” which essentially is a court order usually instructing the sheriff or other law officer to take some action. Some of the most common scenarios for a Writ of Assistance are as follows:
A party who has a restraining order taken out against them obtains a Oregon Writ of Assistance to obtain belongings from a place of residence where they are otherwise prohibited from going. For example, if Wife obtains a restraining order against Husband which requires Husband to leave the marital home, Husband would unable to return home (for instance, to receive medicine and clothes) without being in contempt of court. By having a Writ of Assistance, the sheriff can accompany Husband for the purpose of retrieving personal items approved by the court, thereby avoiding being in violation of the restraining order.
After a final judgment of dissolution of marriage is completed, the judgment will specify personal property that is to be awarded to each party. Sometimes the person in possession of property awarded to another refuses to relinquish it. For example, the court awards Husband his golf clubs that are in the marital home awarded to Wife. After the judgment, Wife then refuses to make the golf clubs available to Husband. In this case, Husband could obtain Writ of Assistance that orders the sheriff to accompany Husband to the house for the purpose of peaceably obtaining the clubs he was awarded.
The authority of the court to order these arises from their intrinsic equitable powers, not statutory authority. Please see the attached Oregon Supreme Court case US National Bank of Oregon v. Chavez, 281 Or 329 (1978). Essentially, the court is able to use the sheriff to enforce its own orders. This is similar to the authority of court to order the sheriff to bring in a witness who has not appeared under a valid subpoena.
Additionally, they can be used to have the sheriff assist in obtaining a child from a parent who has withheld parenting time in contradiction to an existing judgment or to obtain personal property that is being improperly held by a former spouse after a dissolution judgment (i.e. judgment orders wife awarded vehicle, husband keeps it locked in his garage and will not allow access post-divorce). Theoretically, such writs could also be used for a spouse improperly committing marital waste at the outset of a divorce by destroying or damaging personal property subject to the statutory restraining order. Finally, writs of assistance are routinely used at the onset of a restraining order to allow Respondent time to access a property for purposes of taking personal belongings before leaving a residence they have been ordered to vacate.
Generally, obtaining a writ requires four components:
- A Motion seeking the Writ;
- An existing judgment or order definitively awarding specific property to a party (i.e., right to the specific property has already been adjudicated – it cannot be used pre-judgment) or prohibiting certain action;
- An affidavit or declaration asserting the right to have the property, usually pointing to the judgment or order as the basis (I generally attach the judgment as an exhibit to the affidavit); and
- The Oregon Writ of Assistance Order itself.
- Also keep in mind that the writ, much like a search warrant, is specific to a location where the property is located. If a writ orders the sheriff to obtain a vehicle from the Wife at her home, and the wife subsequently moves the vehicle to her neighbor’s garage, the sheriff cannot enter the neighbor’s garage without a new writ.
Although court forms are available in some Oregon counties for purposes of obtaining a Writ of Assistance, it is advisable to speak with an attorney to see if such a remedy is appropriate in your specific case.