Fat clause, porker clause, weight gain clause, skinny clause, and weight clause are all such eloquent and respectful (sarcasm) names for the provision some people allegedly put in their prenups to deter their spouse from gaining weight. Yikes, we know! No, HelloPrenup does not offer this clause as an option, but we get so many questions out of curiosity about it that we thought we’d address it in an article.
We’ll cut to the chase right now: weight gain clauses are not enforceable. Judges didn’t go to law school for many years and dedicate their lives to the practice of law to evaluate people’s weight gain in a divorce.
We’re going to refer to this clause as a “weight gain clause” because saying “fat or porker clause” just doesn’t sit right with us. Keep reading to find out more about this lovely provision.
Okay, so what exactly is a weight gain clause?
A weight gain clause is pretty much exactly what you’d think. It’s a provision in a prenup that basically says something along the lines of, “You can’t gain weight during the marriage; otherwise, you owe me money.” A weight gain clause is considered part of the “lifestyle” clauses that you hear more and more these days. A lifestyle clause can include weight gain, cheating, in-laws, and more.
Are weight gain clauses actually “legal”?
Let’s get right to the bottom of it: the answer is courts are not going to enforce a weight gain clause. Does that mean you can still add it to your prenup? Well…yes, but at your own risk. Most lawyers across the nation would vehemently decline to add this clause to your prenup because it’s generally unenforceable and could even be bad enough to get your entire agreement thrown out.
Why isn’t a court likely to enforce this type of provision? A divorce court is there to help sort out financial issues, not play personal trainer.
Now, if you’re dead set on including this type of clause, even though you know it won’t be enforced by a court, then you *technically* can do that. In other words, it’s not “illegal” to add it to your private contract with your spouse. The fact of the matter is, if your spouse decides he or she wants to abide by the “porker” clause, then… that’s between you two.
The bottom line (and warning): A weight gain provision is dangerous to add to your prenup as it risks getting the entire agreement thrown out. If your future spouse challenges the validity of the weight gain clause, a court is going to side with the spouse and not enforce it. In fact, the court may even call the entire prenup unenforceable and throw it out.
What do attorneys say about weight gain clauses in prenups?
We spoke with some attorneys from different states. Here’s what they had to say:
California Family Law Attorney Raymond Hekmat said, “Weight gain clauses are not enforceable in CA because it goes against the no-fault policies of the state. Including such a clause in the prenuptial agreement could result in the whole agreement being set aside.”
New York Family Law Attorney Daniel Clement said, “Weight gain clauses aren’t enforceable in New York. If a prospective future spouse is looking to penalize their partner in a prenup for weight gain or something as superficial as your appearance, that may be a good indication of what they really value. I would caution the client to more closely examine what your rights are going to be when, not if, the marriage ends in divorce.”
Florida Family Law Attorney Christi Gray said, “I have never seen a weight gain clause in my career, and I would advise against it.”
Celebrity couple who allegedly had a weight gain clause
The infamous weight gain clauses have gotten attention from the rich and famous and made weight gain clauses more well-known. Let’s look at a famous celeb couple that supposedly included a weight gain clause in their prenup:
Jessica Simpson and Tony Romo
Does anyone remember the beloved 2000’s country singer Jessica Simpson? How about that one really good Cowboys quarterback, Tony Romo? One of the most famous weight gain clauses comes from their delightful relationship.
Allegedly, their prenup stated Jess was to pay Tony $500,000 per pound she gained over 135 pounds! To absolutely no one’s surprise, they did not go through with the marriage, so the prenup never became effective (prenups are effective upon marriage). We TOTALLY didn’t see that coming!
Other types of lifestyle clauses that are just as crazy
Along the same vein of the “fat clause” are some other outrageous lifestyle clauses that are just as crazy.
This clause awards the wife money for each child she bears. For example, $100,000 per child birthed. For $100,000 per birth, that’s about $11,000 per month of pregnancy, not a bad payout! Is it enforceable? Not likely.
We all know the joys of in-laws. You have a love-hate relationship with them (or maybe just hate). Enter: the in-law clause. Maybe it’s something like “in-laws may only enter the marital home one time per month.” Or maybe it’s the opposite, “we are required to spend time with in-laws at least once a week.” Whatever the case may be, good luck trying to enforce those in court!
How much, when, style, you name it, and there’s a sex clause for it. Yes, people add these. No, they’re not enforceable. We’ll leave it at that.
While this one is sort of positive (in a dark way), it’s still not likely to be enforced by a court. A drug use clause basically says, “Spouse A will not use drugs during the marriage.” Ever heard the phrase, the path to hell is paved with good intentions?
The Bottom Line
Don’t put a weight gain clause in your prenup unless you’re okay with the possibility of your entire prenup being thrown out. Most attorneys out there will not agree to put in a weight gain clause in your prenup because they’re simply unenforceable. Stick to the good ol’ enforceable topics like property division and alimony to ensure your prenup stays intact.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]