Rule 40.Continuances: Contents of motion or request; absence of material witness

Ch. VI: Trials · Last amended 2020 · Current through June 1, 2026 · Last verified September 9, 2026

In one sentenceRule 40 requires a continuance to be asked for in writing, in a timely way, and to say how old the case is, how often it has been scheduled before, and what the other side thinks.

Full Text of Rule 40

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g) (h)

(a) All motions for continuances must be made in a timely manner and in writing to the judicial officer assigned to hear the case. The written request shall contain:

(1) a statement of the original filing date of the petition;

(2) the position of opposing counsel on the request, or, if there is no opposing counsel, the position of the opposing party;

(3) the number of times that the case has been scheduled for hearing previously;

(4) the reason(s) why the request is being made; and

(5) if the case involves a conflict with a case scheduled before another court:

(i) the name of the other court and the name of the case must be recited;

(ii) the reasons why the conflict cannot be resolved;

(iii) the relative importance of the conflicting cases;

(iv) the relative inconvenience of the parties, witnesses, and other person if a continuance is granted;

(v) the dates on which each court scheduled the case and whether the court which created the scheduling conflict was aware that a conflict was being created; and

(vi) other information which will be helpful to the judicial officer in deciding which of the conflicting matters should take precedence.

(b) When a scheduling conflict exists, the attorney should promptly attempt to resolve it, either by arranging for another attorney to handle one of the conflicting matters, or otherwise resolving the conflict. If the scheduling conflict cannot be resolved, the judicial officer to whom the conflicting cases are assigned (or the Clerk if a judicial officer has not been assigned) should immediately be notified in writing of the existence of the conflict. Any request for a continuance based on a scheduling conflict shall comply with the requirements of subdivision (a) of this Rule.

(d) Any request that fails to contain all of the information required by subdivision (a) of this Rule may not be considered.

(e) When an emergency or unforeseeable situation prevents full compliance with Rule 40(a), the judicial officer assigned to the case may consider an oral or incomplete request for continuance and may require subsequent submission of appropriate correspondence or documentation.

(f) Should a continuance be granted by the Court, further notices of any proceeding in the case may be oral, rather than written, directed to counsel or the parties if unrepresented, and it shall be their responsibility to notify witnesses of the date, time and place of the proceeding, and to request subpoenas, if appropriate, to compel the attendance of a witness, at least 5 business days prior to the proceeding.

(g) A judicial officer granting a continuance shall make a written entry in the Court record of the reason for continuance.

(h) Every motion for continuance upon the ground of the absence of or unavailability of a material witness shall be filed as soon as said absence or unavailability becomes known and, in addition to furnishing the information set forth in subdivision (a) above, shall be accompanied by an affidavit on behalf of the party applying therefor, setting forth the facts expected to be proved by such witness, the efforts made to procure the witness' attendance, and the date when the absence or unavailability of the witness became known. If it be stipulated by the opposite party, that the witness if called would testify as set forth in the affidavit, the Court, in its discretion, may refuse the motion, and under such circumstances, the affidavit may be offered in evidence at the trial.

End

Amendment History

Delaware prints each rule’s amendment history as a single “Credits” line naming every order that adopted or amended it. It is reproduced verbatim below.

[Amended effective September 1, 2020].

Plain-English Summary

Most rules about continuances say the court may grant one for good cause. This one says what you have to disclose, which is a more useful thing to know.

The request. In writing, in a timely manner, to the judicial officer assigned to hear the case. It must state the original filing date of the petition; the position of opposing counsel, or of the opposing party where there is no counsel; the number of times the case has already been scheduled for hearing; and the reasons for the request.

Those disclosures are a portrait of the case's history, and they are what the judge actually weighs. An early request in a freshly filed case reads very differently from a repeated one in a case that has been listed again and again, and the rule makes the difference visible without anyone having to look it up.

Conflicting court dates. Where the case conflicts with one scheduled before another court, the request must also recite the name of the other court and the name of that case; the reasons the conflict cannot be resolved; the relative importance of the conflicting cases; the relative inconvenience to parties, witnesses and others if a continuance is granted; the dates on which each court scheduled its case and which court created the conflict; and anything else helpful in deciding which case should give way.

Absent witnesses are dealt with separately, on the terms the rest of the rule sets out.

Frequently Asked Questions

How do I ask for a continuance in the Delaware Family Court?

In writing, in a timely manner, to the judicial officer assigned to hear the case.

What must a continuance request say?

The original filing date of the petition, the position of opposing counsel or the opposing party, the number of times the case has been scheduled for hearing previously, and the reasons for the request.

What if my lawyer is due in another court that day?

The request must also give the other court and case, why the conflict cannot be resolved, the relative importance of the two cases, the relative inconvenience to parties and witnesses, and the dates each court scheduled its case.

Source & verification. The rule text and amendment history are reproduced verbatim from the Delaware Family Court Rules of Civil Procedure (Fam. Ct. Civ. R. 40), and every rule has been checked word for word against the Delaware Family Court’s own published edition of these rules. Current through June 1, 2026. The plain-English summary is original and written by us. Last verified September 9, 2026. · Official source

Also known as: continuance Delaware Family Courtpostpone hearing Delawarescheduling conflict Delaware courtFam. Ct. Civ. R. 40