how do write of assistance's work

Writ Of Assistance, Divorce, And Child Custody

Goldberg Jones Divorce, Divorce Process Leave a Comment

Divorce and child custody cases are often intense and antagonistic undertakings. And just because a judge hands down an order, doesn’t mean it will always be followed. Oregon law includes a number of writs, court orders that either require an action to be taken or give authority and power to perform a specific act. When enforcing divorce orders and child custody plans, a writ of assistance often comes into play.

What is a Writ of Assistance?

On a basic level, a writ of assistance is a written court order that instructs law enforcement, such as a sheriff or police officer, to take action to help one party obtain something specifically ordered in a previous court order.

That sounds like a lot, but this new order essentially helps enforce a pre-existing order. When it comes to family law, there are a number of ways this manifests.

WOA Use in Restraining Orders

Restraining orders are often an unfortunate part of combative, contentious divorces. If one party obtains such a mandate against the other, unwanted contact may result in contempt charges.

For Example:

Say an ex-wife gets a restraining order against her ex-husband. In this situation, he can’t go back to the house without violating the order, even to collect his things. A writ of assistance helps in these circumstances.

After obtaining one, an officer accompanies the husband to the marital home to collect clothes, medicine, and other items. He can show up, get what he needs, and vacate the premises without the worry of contempt charges.

Called a “Civil Standby,” and very short in duration, such visits are limited to personal belongings and only last approximately 15 minutes.

Related Reading: What to Know About Restraining Orders

WOA Use in Property

The division of property is a big part of the divorce process. The final judgment divides up the shared assets, awarding specific items to each party.

This is all well and good, but what if your ex refuses to surrender the property in question?

If your divorce decree awards you a piece of furniture, an appliance, or other items, but your ex refuses hand it over, a writ of assistance comes in handy.

The court can issue an order that directs law enforcement to accompany you to the house with the intent of obtaining the property from the settlement. If your ex continues to stand in the way, they face legal consequences.

An important note, a writ of assistance only applies to one specific location. As an example: If you arrive to pick up a boat awarded to you in the settlement, but it’s stored at your ex’s parents, you can’t go get it without a new order.

Related Reading: Enforcing A Parenting Plan

WOA Use in Child Custody

A writ of assistance can also be of use when it comes to child custody and visitation. Too often children become pawns in the struggle between bitter parents.

If you have blocks of visitation in your divorce settlement, but your ex denies this time, a writ of assistance gives the local police authority to enforce your parenting time.

This step often becomes necessary in these situations. Otherwise, many law enforcement officers can’t or won’t intervene, viewing an ex not following a parenting plan as a civil matter.

A judge may also issue a writ of assistance over health and safety concerns. If the court finds that a child is in imminent physical danger, it may call for an order to remove the child from a situation and for law enforcement to take physical custody. This is an extreme circumstance, but one that unfortunately does happen.

Related Reading: Fathers’ Rights and Child Custody: What You Should Know

How To Obtain A WOA

As shown, a writ of assistance is used in a variety of ways. But the questions of if you need one, whether to obtain one, or how to get one remain. Like every legal practice, this involves a process and you must follow a number of steps.

In order to file a motion seeking a writ of assistance, you’ll need a couple of items.

  • First, there must be an existing judgment that explicitly awards you the rights to a  specific piece of property. Or, it can entitle you to certain actions, like the visitation of your children.
  • You also need an affidavit that declares you have the right to the property or action. Most of the time, this points back to the previous judgment.

From there, a judge will consider the claim.

A writ of assistance is one tool to help ensure and enforce your rights in divorce and child custody cases. As with most legal undertakings, things often get tricky and complicated in short order.

As usual, if you want to attempt to go down this path, it’s in your best interest to hire an experienced attorney.

Related Reading: What Is A Status Quo Order?

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