Rule 40.Assignment of Cases for Trial — Continuances.
Current through February 2024 · Last verified September 12, 2026
Full Text of Rule 40
Amendment History
Rhode Island does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own February 2024 printing; for the underlying adopting orders and any later amendments, see the Rhode Island Judiciary’s compiled rules page.
Plain-English Summary
Subdivision (a) leaves assignment to the court, working through orders, rules of practice and general orders adopted for that purpose, and gives precedence to actions entitled to it by statute. It also sets a waiting period that surprises people who want a quick hearing date: unless the court orders otherwise, no trial of an action seeking a divorce or a separation may commence sooner than sixty days after the action has been commenced.
Putting a date off is not a courtesy the lawyers can arrange between themselves. Subdivision (b) allows a continuance only on motion and for good cause shown, and the court may attach whatever terms and conditions it determines.
Subdivision (c) decides most continuance fights. When the reason is an absent material witness, the court need not entertain the motion unless an affidavit names the witness, gives the address if known, states the facts the witness is expected to testify to and the basis for that expectation, describes the efforts made to procure the witness's attendance or deposition, and explains what the party expects to obtain later. Even a complete affidavit can lose: the court may deny the motion if the adverse party will admit that the absent witness, if present, would testify as the affidavit states.
Illness carries its own proof requirement. A motion based on sickness of a party or witness must come with a certificate of a practicing physician stating the fact of the sickness and its kind, degree and time of beginning, and the court may deny the motion if the moving party did not notify the other side of the illness and the coming motion as soon as practicable.
Frequently Asked Questions
How soon can a Rhode Island divorce go to trial?
Under subdivision (a), no trial of an action seeking a divorce or a separation may commence sooner than sixty days after the action has been commenced, unless the court orders otherwise. The sixty days run from commencement of the action, not from service or from the filing of an answer.
What do I have to file to postpone a hearing because a witness cannot be there?
Subdivision (c) says the court need not entertain the motion unless it is supported by an affidavit giving the witness's name, the address if known, the facts the witness is expected to testify to and the basis for that expectation, the efforts made to procure attendance or a deposition, and what the party expects to obtain at a future time. Without those contents, the judge can decline to take up the motion at all.
Can the other side defeat my continuance by agreeing with what my witness would say?
Yes. Subdivision (c) lets the court, in its discretion, deny the motion if the adverse party will admit that the absent witness would testify as stated in the affidavit. The admission substitutes for the live testimony and removes the reason for the delay.
What proof do I need if I am sick on my court date?
A motion for a continuance grounded on sickness of a party or witness must be accompanied by a certificate of a practicing physician stating the fact of the sickness and its kind, degree and time of beginning. A note that says only that you were seen by a doctor does not supply those three items.
Can my lawyer and the other lawyer agree to move the trial date without the judge?
No. Subdivision (b) allows continuances only upon motion and for good cause shown, and on such terms and conditions as the court determines. Agreement between counsel may support the motion, but it does not replace it.