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Post-Nuptial Agreements

There is a growing trend for post nuptial agreements. Like the pre-nuptial agreement, the post-nuptial agreement sets out the parties' rights, obligations and liabilities upon the termination of marriage by either death or divorce. The only difference between the two marital agreements is that the post-nuptial agreement is executed sometime after the parties are wed.

Post-nups are particularly popular in the hedge fund industry. The financial tycoons may be seeking to limit their downside risk in the event that their marriages become, to use the street slang, "bearish" (or in the event they want to seek other opportunities.)

Some hedge funds require new partners to have a marital agreement in which the partner's spouse waives his/her claims against the fund. The hedge fund firms are looking to protect themselves since the partnership interests could be marital assets and, therefore, subject to equitable distribution. In order to ascertain the value of the partnership interest, the partnership needs to be valued opening the door to an inspection of the hedge funds books and records.

So why would a spouse waive his or her claim against partnership interest in the hedge fund? The spouse is probably banking that the marriage will continue and he/she will continue to enjoy the lifestyle afforded by interest in the hedge fund. But, in the event the marriage ends in divorce, the consideration for the waiver could be a generous distributive award.