The use of AI chatbots like ChatGPT, Grok, or Claude has exploded, with many users seeking advice for a range of personal issues attracted by the personalized, empathetic responses and helpful advice AI delivers. Although many believe a seemingly confidential exchange with a chatbot is harmless, for those navigating divorce, child custody or other family law issues, using public AI tools can prove devastating to their case. In fact, just recently, a New York federal court ruled that conversations with public chatbots are not protected by attorney client privilege or work product doctrine. The court reasoned:
- No attorney-client relationship exists between a user and an AI platform
- There is no reasonable expectation of confidentiality as AI terms of service clearly state all information is used to train AI models and may be disclosed to third parties
- Chats (in the NY case) were not prepared at the direction of attorney and therefore not covered as an attorney work product making them discoverable in a family law matter
Parties to a divorce may be compelled by opposing counsel to produce information through the discovery process. Any information pertinent to the case that is not covered by attorney-client privilege is far game including confidential communications, financial records, legal strategy discussions, or case details supplied to an AI tool. When privileged content is shared with a public AI tool, any attorney-client protection may be waived and the information discoverable in a family law proceeding.
Although anonymously chatting with a bot seems to come without any strings attached – how are they going to know after all? – for a party involved in a legal matter it is just a matter of asking the question: has the client used AI tools? Opposing counsel will most certainly inquire about the use of public AI tools through interrogatories, depositions, and discovery requests or via a subpoena demanding all communications with AI-based tools. Full disclosure is mandatory and enforceable under the law.
Protecting Your Case
Regardless of whether a user has a free or paid subscription to an AI platform makes no difference. Someone in the thick of a divorce proceeding should avoid sharing with AI even a summary of information shared between attorney and client; they should not share financial information; they should not use chatbots to brainstorm arguments or analyze responses from the other party, or use Ai to prepare for depositions or court appearances. Although it is tempting, a party to a divorce which may involve child custody, property division, or alimonly issues, should refrain from hashing out strategies with an AI tool or risk giving the opposing party a gift of evidence to work from.
Electronic Communications Up for Grabs
Electronic communications like emails, social media posts, direct messages, and interactions with Ai chatbots can and often will be used as evidence in family law proceedings, including divorces, custody battles, support and property disputes. Courts routinely admit digital records because they are easy to subpoena from service providers, recover through forensic tools, or obtain directly from devices and may demonstrate patterns of behavior, financial dealings, communications with children, new relationships, or inconsistencies in testimony. What is posted can certainly be interpreted as evidence of character, parenting fitness, hidden assets, or intent—sometimes in ways never anticipated. A good rule of thumb is to avoid sharing personal, emotional, financial, or legal details electronically with anyone other than your attorney.
Damage Control Before Online Communications Become an Issue
Once an electronic communication is shared, it’s nearly impossible to fully retract, and opposing counsel will mine it for leverage. However, it is not too late to change ongoing patterns of behavior and restrict access to minimize the damage. There are a number of practical steps to limit exposure and clean up a digital footprint proactively:
- Audit and lock down accounts: Review privacy settings on all social media, email, and messaging apps. Switch to private profiles, limit who can see posts, and disable location tagging. Consider deactivating or deleting accounts you no longer need.
- Change passwords and enable 2FA: Secure all accounts and log out of shared or old devices. Remove any synced access from computers or phones your spouse might have.
- Remove Harmful Posts: Before separation or filing for a divorce, delete or archive inflammatory, personal, or legally sensitive posts/messages where possible. After a case is filed, removal may be construed as spoliation of evidence and hurt your case.
- Use secure, professional channels only: Route all legal or financial discussions through your lawyer’s encrypted email or client portal. Avoid texting or posting about the case, your spouse, children, or finances.
- Preserve what helps you: Ironically, keep (but don’t alter) records that support your position—screenshots with metadata intact can be useful evidence in your favor.
- Consult an experienced family law attorney early: Speak with an attorney and possibly a digital forensics specialist for tailored advice. They can guide you on what to preserve or how to handle potentially damaging material.
- ALWAYS think before you type. Assume everything you write electronically can be used as evidence in a legal proceeding.
Contact an Experienced Illinois Family Law Attorney
When you are considering divorce, it is important to work with an experienced family law attorney who will help you navigate the process and obtain the most favorable outcome. Contact Illinois Family Law Attorney Ronald L Bell & Associates for immediate assistance today.
