Can you have a no-appeal clause in a separation agreement? (Let’s leave aside for a moment the questions of how and why would you). Of course you can, the Court of Appeals decides in a case of first impression. It finds that there is no public policy against having in a separation agreement a clause saying that if the matters addressed therein are litigated, the result of that can’t be appealed.
There is no public policy against trying to control the ever-growing volume of litigation, especially that litigation which comes to the appellate courts that make public policy. It is, however, a first impression issue and an interesting issue to the Court of Appeals, which has said on several occasions that a party may enter into an agreement in which he waives a significant right, but there are limits, as in Kelly v. Kelly, 248 Va. 295, 298; 449 S.E.2d 55, 56 (1994), which said an agreement cannot permanently eliminate a father’s responsibility to pay child support. Sections 20-147 through 155 regulate marital agreements, and §20-150(A) allows divorcing parties to contract with respect to any matter “including their personal rights and obligations, not in violation of public policy or a statute imposing criminal penalty.” This clause does not violate that statute or any public policy. The 1935 case of Campbell v. Brotherhood of Locomotive Firemen & Enginemen, 165 Va. 8, 14; 181 S.E. 444, 446 concerned a waiver of the right to take matters into court after an administrative board of a union had ruled, and the Virginia Supreme Court of Appeals determined that “the right of ultimate appeal to the court in an inalienable right, and since it is inalienable, it cannot be bargained away,” but if someone has the right to resort to the courts, that does not include a further stage of litigation to appellate courts. The Court of Appeals also quoted several federal court opinions which have found no-appeal clauses binding. Such waivers of litigation rights are particularly reasonable in marital separation agreements. Burke v. Burke, 52 Va. App. 183, 662 S.E.2d 662 (6/24/2008).