Cohabitation Agreements

Cohabitation Agreements

December 24, 2020

The divorce rate in the United States is now under 50% according to the National Center for Health Statistics. In fact, it appears as though the current divorce rate for the US is roughly 44%, with North Dakota’s rate being just slightly higher at 45%. If one looks back at the divorce rate over the past twenty years, it becomes plain to see a consistent drop in the divorce rate year after year.

Why is this? Some may hypothesize people are taking longer to get married and therefore, are more mature and knowledgeable as to what they are getting into when they make the decision to tie the knot. Others may guess the human race has become more religious and are simply following the tenets of their religion by remaining together. But the data does not support either of these theories. Rather, it appears people just aren’t getting married as often as they used to.

Shacking Up

According to me, a really great guy, couples are cohabiting more and more. If that isn’t enough for you, there is also some data to suggest this is the case. So, if people are shacking up more and more each year, without saying “I do,” what do these couples do in the event they break up? Who gets the couch? Who gets the neon beer light? And, most importantly, who gets the brand new 85” Samsung 8k UHD Smart Tizen television?

Common Law Marriage

When I get calls regarding cohabitation break-up situations, a lot of people ask if they can invoke a common-law-marriage-type-status in order to get what they feel they deserve. Back in the day, if a couple lived together for a certain amount of time, held themselves out as married, and had the capacity to marry each other (they were over 18, were of sound mind, etc.) courts could still require them to “divorce” when a breakup occurred – part of which would require an equitable division of the assets and debts the parties had acquired while together. However, this is no longer an option for parties in North Dakota as common law marriage was abolished in 1890.

Cohabitation Agreements

You would think North Dakota would have established a law that addresses this sort of situation given it abolished common law marriage so long ago. Unfortunately, it has not.

Unlike North Dakota, Minnesota has addressed the situation in which a couple lives together for a period of time with no intention of getting married. Basically, Minnesota’s statute on cohabitation says that if two people living together enter into a contract, that contract will be enforceable as long as it is written and signed by the parties, and enforcement is sought after the termination of the relationship.

In light of the simplicity of Minnesota’s statute regarding cohabitation, it is believed that a North Dakota couple could follow basic North Dakota contract law to enter into an agreement that controls what would happen with their assets and debts in the event of a break-up. While the enforcement of the same is not a guarantee in North Dakota, it certainly is better than the alternative.


Although North Dakota does not have any laws specific to a couple cohabiting outside of marriage, it does have “regular” contract laws that could be applied to this situation. If you are contemplating moving in with someone without the intent to marry them, you should consult with an attorney about the possibility of entering into a contract regarding what would happen in the event of a break-up.

If you want to consult with someone regarding a cohabitation agreement please contact us!