Can AI-Generated Texts Be Used as Evidence in Divorce Court?

You usually cannot use AI-generated texts as authentic text messages in divorce court. However, this has not stopped some individuals from trying.

Since 2011, Epperson Law Group, PLLC, has guided North Carolinians through the divorce process. Our divorce lawyers stay abreast of legal and technical developments, including how the rise of AI is affecting these types of cases. Keep reading to learn more about AI use and how the courts are handling evidence that may not be authentic.

What evidence is admissible in a divorce case?

In general, for evidence to be admissible in court, it must be relevant to the case and be authentic. Relevance means that the evidence has bearing because it could prove or disprove that a point of fact is more or less likely. Authentic means that the evidence is real and not fabricated. Usually, the bar is lower for proving relevance than authenticity.

In divorce cases, much of the evidence relates to a couple’s finances and the division of their property. Proof may include tax documents, property deeds, and bank account statements. Evidence may also be used to support claims for custody or to prove allegations of fraud, infidelity, abuse, or mistreatment. This type of proof may include photographs, texts, and voice recordings.

How can you prove that evidence is or is not authentic?

AI use is becoming increasingly common. Now, nearly anyone can produce photos, texts, and audio using readily available online programs. As these programs become more sophisticated, these AI-generated materials are getting harder to spot. Often, AI detection tools fall short and are not evolving as quickly as the technology used to generate AI content.

The National Center for State Courts (NCSC)(opens in new tab) has highlighted AI-generated evidence issues involving self-represented litigants, though AI-related problems are not limited to people without lawyers. This shows that in many situations, having an experienced attorney can go a long way toward preventing the use of fakes.

When evidence that may be AI is put before a divorce court, it becomes the job of a judge to determine if the proof is real and should be admitted. There are many ways to do this, including seeking verification of the evidence from eyewitnesses. The judge can also consider any paper or digital trails that verify the evidence is original. Other things to consider include the credibility of the involved parties and whether the proof seems too convenient or “too good to be true.”

AI in real-world cases

The ability of a court to identify AI-generated evidence is not foolproof. In one recent criminal case reported by ABC7(opens in new tab), a Florida woman was arrested for battery during a fight with her boyfriend and was ordered by a judge to stay away from him as part of her bond. Several months later, the boyfriend showed the court text evidence of the woman harassing him. This led to her arrest and jailing. It took her lawyers eight months to challenge the texts and get the bond violation charge dropped.

If anything, this example should serve as a warning that AI-generated evidence can have real-world implications, despite best efforts to weed it out.

What is the burden of proof in family court?

There are two things to consider regarding the burden of proof in family law cases. First, to whom does the burden belong? Second, what is the standard of proof required?

In a divorce case, the burden of proof depends on the issue before the court. It often rests with the person who files a motion. So, for example, if you file a motion seeking spousal support, the obligation to prove that you need it and that your spouse should pay it typically falls on you. Or, when dealing with the division of property, if you claim something is separate property (and, therefore, not divisible), it is on you to show that you acquired it before your marriage or received it as a gift.

For most family court issues, the standard is that you prove your point using a “preponderance of the evidence.” This means that you must show that something is more likely than not. Some issues may have a higher standard. For instance, in termination of parental rights proceedings, the petitioner or movant must prove the facts justifying termination using clear and convincing evidence.

Pitfalls of relying on digital evidence

Texts and other authentic digital evidence can be essential to proving your divorce case, but they are most helpful when you handle them correctly. A common pitfall is believing that taking screenshots is enough. Screenshots, while often useful and potentially admissible if properly authenticated, lack metadata (like device IDs and GPS info) that may help prove that an image is real and not a fake.

If you have texts, photos, videos, or other digital evidence on your phone or other devices, the best thing you can do is to save the unaltered, original files. Secure your phone and devices with passwords, so your spouse cannot access them. You should also secure any online accounts, including financial and social media accounts.

What should you do if AI evidence is an issue in your case?

If your spouse is trying to use deepfakes as proof in your divorce case (or is accusing you of doing so), you should get legal help immediately. Your lawyer can help you enlist technological experts who can help verify whether digital evidence is or is not real. A lawyer can also help you gather other proof, such as eyewitness testimony, that can help the court authenticate (or invalidate) texts or other evidence in question.

Contact Epperson Law Group, PLLC for help with your divorce case

Epperson Law Group, PLLC helps clients across North Carolina with family law issues, including divorce, child custody, and modifications to family court orders. If you are seeking to end your marriage, our attorneys can be powerful advocates for you. We can help you secure a divorce settlement with authentic evidence. We can also push back against AI-generated or other flimsy forms of proof that your spouse may use against you.

To learn more about how we can serve you, contact us today. We have five offices across the state, can consult with you over the phone or Zoom, and speak English, Spanish, and French.