Delaware Motion for Continuance

Q: What are acceptable reasons for a continuance in Delaware civil court?

Superior Court and Court of Common Pleas Rule 40(c) names the absence or unavailability of a material witness. The judge decides whether any reason is enough for a continuance.

Q: Does a Delaware motion for continuance have to be in writing and sworn?

In Family Court it must be timely and in writing (Rule 40(a)). A motion based on a missing material witness must be accompanied by an affidavit on behalf of the party applying (Superior Court and Court of Common Pleas Rule 40(c); Family Rule 40(h)). An affidavit is not stated as a requirement for other grounds.

Q: What must the affidavit say if a witness is unavailable in Delaware?

It must set out the facts you expect to prove by the witness and the efforts made to procure the witness' attendance (Superior Court and Court of Common Pleas Rule 40(c); Family Court Rule 40(h)). In Superior Court and Court of Common Pleas, the motion must also say when the absence became known.

Q: What are reasons for a continuance in Delaware family court?

Family Court Rule 40 lists a scheduling conflict with another court, and your written request must give your reasons, the original filing date, the other side's position and how many times the hearing was set. Criminal cases have priority over civil ones. The judicial officer decides.

Q: Can I ask for an emergency continuance in Delaware Family Court?

When an emergency or unforeseeable situation prevents full compliance with Rule 40(a), the judicial officer may consider an oral or incomplete request (Rule 40(e)). It is up to the judicial officer, so do not assume it will be granted.

Q: Can the other side and I agree to a continuance in Delaware?

You can ask, but the court decides. For Family Court custody or visitation mediation conferences, the Court will not grant a continuance on the basis that a stipulation is forthcoming. Until the court rules, the original date stands.

Q: Do I still have to go to my Delaware hearing if I filed a motion for continuance?

Yes, unless the court has granted the motion and told you the date moved. Filing a motion does not postpone anything.

Q: Are there special continuance rules for Delaware eviction or small claims cases?

Eviction cases are heard in Justice of the Peace Court, and small claims are handled in Justice of the Peace Court and the Court of Common Pleas. Justice of the Peace Court civil rules say a continuance shall be granted on the defendant's motion if the defendant was served fewer than four days before the appearance, and address a defense or counterclaim raised near trial. Ask the court clerk about other limits.

Delaware Rule 40 governs continuances. Your court date stands until the judge rules.

Find out where you stand in Delaware

What kind of case is the hearing in?

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Introduction

Delaware Rule 40 covers continuances in Superior Court, Court of Common Pleas and Family Court. Family Court requires a timely written request. In the other two, a witness-absence motion is due once the absence is known. Your date stands until the court rules.

Key Things to Know

1
Delaware uses the term continuance. Rule 40 of the Superior Court, Court of Common Pleas and Family Court civil rules covers it. Justice of the Peace Court, which hears small claims and landlord-tenant cases, has its own civil rules.
2
The hearing or trial date stands until the court grants the continuance. Attend unless the court tells you the date has been moved.
3
Superior Court and Court of Common Pleas Rule 40(c) states one ground: the absence or unavailability of a material witness. The judge decides whether your reason is enough.
4
In Superior Court and Court of Common Pleas, a witness-absence motion must be filed as soon as the absence or unavailability becomes known, and must come with an affidavit on behalf of the party applying. It sets out the facts you expect to prove by the witness and the efforts made to procure the witness' attendance (Rule 40(c)). Family Court Rule 40(h) also requires the affidavit.
5
In Family Court, all continuance motions must be made in a timely manner and in writing to the judicial officer assigned to the case (Rule 40(a)). It must give the original filing date, the other side's position, how many times the hearing has been set, and your reasons. An incomplete request may not be considered (Rule 40(d)).
6
Family Court lists a scheduling conflict with another court as a ground, and criminal cases have priority over civil ones (Rule 40(b), (c)). In an emergency or unforeseeable situation, the judicial officer may consider an oral or incomplete request (Rule 40(e)).
7
At Family Court custody or visitation mediation conferences, the Court will not grant a continuance on the basis that a stipulation is forthcoming, and continuances use a Court-approved form. In Justice of the Peace Court, a continuance shall be granted on the defendant's motion if the defendant was served fewer than four days before the appearance.

Key decisions before you file

Before you file a Motion for Continuance in Delaware, a few decisions shape the document: which option to choose and what each one means. The Motion for Continuance guide walks through them.

Open the Motion for Continuance guide

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STATE OF DELAWARE IN THE [SUPERIOR COURT OR COURT OF COMMON PLEAS OR FAMILY COURT OR JUSTICE OF THE PEACE COURT] OF THE STATE OF DELAWARE [COUNTY] COUNTY

[PLAINTIFF OR PETITIONER NAME], Plaintiff/Petitioner,

v. C.A. / Case No. [CASE NUMBER]

[DEFENDANT OR RESPONDENT NAME], Hearing/Trial Date: [DATE AND TIME] Defendant/Respondent.

MOTION FOR CONTINUANCE

[YOUR NAME], [PLAINTIFF, DEFENDANT, PETITIONER OR RESPONDENT], [SELF-REPRESENTED OR BY COUNSEL, NAME], moves under [RULE 40 OF THE SUPERIOR COURT, COURT OF COMMON PLEAS OR FAMILY COURT CIVIL RULES OR THE JUSTICE OF THE PEACE COURT CIVIL RULES] for a continuance of the [HEARING OR TRIAL] now set for [DATE AND TIME]. In support, the movant states:

This case was originally filed on [ORIGINAL FILING DATE]. The [HEARING OR TRIAL] is set for [DATE AND TIME]. It has been set [NUMBER] time(s) before. This is the [FIRST OR NUMBER] request for a continuance by the movant.
GROUNDS:

[IF APPLICABLE: GROUND A, SUPERIOR COURT, COURT OF COMMON PLEAS OR FAMILY COURT, ABSENCE OR UNAVAILABILITY OF A MATERIAL WITNESS: [WITNESS NAME] is absent or unavailable because [REASON]. This became known to the movant on [DATE]. The facts the movant expects to prove by this witness are [FACTS]. The efforts made to procure the witness' attendance are [EFFORTS AND DATES].]

[IF APPLICABLE: GROUND B, FAMILY COURT ONLY, SCHEDULING CONFLICT WITH ANOTHER COURT: The movant is required to be in [OTHER COURT, CASE NAME AND NUMBER] on [DATE AND TIME], as follows: [DETAILS].]

[IF APPLICABLE: GROUND C, JUSTICE OF THE PEACE COURT ONLY: The defendant moves for a continuance because the defendant was served fewer than four days before the appearance date, on [DATE OF SERVICE]. OR: A defense or counterclaim was raised near the trial date, on [DATE].]

[IF APPLICABLE, FAMILY COURT ONLY, NOT A SEPARATE GROUND: An emergency or unforeseeable situation, [EMERGENCY OR UNFORESEEABLE EVENT], prevents full compliance with Rule 40(a). The movant asks the judicial officer to consider this oral or incomplete request under Rule 40(e).]

REQUESTED NEW TIMING: The movant asks that the matter be continued to [REQUESTED DATE OR TIME PERIOD, OR A DATE CONVENIENT TO THE COURT].
POSITION OF OTHER SIDE: The movant contacted [OTHER SIDE NAME OR COUNSEL] on [DATE]. The other side [CONSENTS, DOES NOT CONSENT, OR HAS NOT RESPONDED].
This motion is made in good faith and not for the purpose of delay.

WHEREFORE, the movant asks that the Court continue the [HEARING OR TRIAL] to the date stated above and grant any other relief the Court finds just.

Dated: [DATE]

[YOUR NAME] [ADDRESS] [PHONE] / [EMAIL]

AFFIDAVIT [IF APPLICABLE: GROUND A] STATE OF DELAWARE, [COUNTY] COUNTY: The undersigned, being duly sworn, states that the facts in this motion about the absent or unavailable witness, the facts expected to be proved, the efforts made to procure the witness' attendance, and the date the absence became known are true and correct.

______________________________ Date: [DATE] [AFFIANT NAME] SWORN TO AND SUBSCRIBED before me on [DATE].

[NOTARY PUBLIC]

CERTIFICATE OF SERVICE I certify that on [DATE] I served a copy of this motion on [OTHER SIDE NAME OR COUNSEL] at [ADDRESS OR EMAIL] by [METHOD OF SERVICE].

[YOUR NAME]

Delaware Requirements for Motion for Continuance

Rule 40 Governs Continuances
Rule 40 of the Delaware Superior Court, Court of Common Pleas and Family Court civil rules governs continuances. Delaware calls the request a continuance.
Affidavit for Absent Material Witness
A motion based on the absence or unavailability of a material witness must be accompanied by an affidavit on behalf of the party applying, stating the facts expected to be proved and the efforts made to procure the witness' attendance (Superior Court and Court of Common Pleas Rule 40(c); Family Court Rule 40(h)).
File Witness Motion Promptly
A witness-absence motion must be filed as soon as the absence or unavailability becomes known (Superior Court and Court of Common Pleas Rule 40(c)). The rule sets no fixed day count.
Family Court Written Request
Family Court continuance requests must be timely and in writing, stating the original filing date, the other side's position, prior hearing settings and reasons. An incomplete request may not be considered (Rule 40(a), (d)).
Family Court Emergency Requests
In an emergency or unforeseeable situation, the judicial officer may consider an oral or incomplete request (Family Rule 40(e)).
Scheduling Conflict and Priority
Family Court Rule 40 addresses a scheduling conflict with another court, and criminal cases have priority over civil ones (Rule 40(b), (c)).
Mediation Continuance Form
Family Court continuances of custody, visitation or guardianship mediation conferences use a Court-approved form. For custody or visitation mediation, a forthcoming stipulation is not a basis for a continuance.
Justice of the Peace Court Rules
In Justice of the Peace Court, a continuance shall be granted on the defendant's motion when the defendant was served fewer than four days before the appearance. The hearing date stands until the court rules.

Frequently Asked Questions

What rule governs a motion for continuance in Delaware?

What are acceptable reasons for a continuance in Delaware civil court?

Does a Delaware motion for continuance have to be in writing and sworn?

What must the affidavit say if a witness is unavailable in Delaware?

How soon must I file a motion for continuance in Delaware?

What are reasons for a continuance in Delaware family court?

Can I ask for an emergency continuance in Delaware Family Court?

Can the other side and I agree to a continuance in Delaware?

Do I still have to go to my Delaware hearing if I filed a motion for continuance?

Are there special continuance rules for Delaware eviction or small claims cases?

Is there an official Delaware motion for continuance form?

Find out where you stand in Delaware

Introduction

Key Things to Know

Key decisions before you file

Customize your Motion for Continuance Template with DocDraft

Delaware Requirements for Motion for Continuance

Rule 40 Governs Continuances

Affidavit for Absent Material Witness

File Witness Motion Promptly

Family Court Written Request

Family Court Emergency Requests

Scheduling Conflict and Priority

Mediation Continuance Form

Justice of the Peace Court Rules

Frequently Asked Questions