Should You Use AI During Your Divorce or Custody Case?

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When you are in the middle of a divorce or custody case, using AI can feel like a natural way to keep up. It can draft the email to your ex, explain a legal term, or lay out what to do next, all in seconds and at no cost. For a process that is stressful and expensive, that convenience is hard to pass up.

The trouble is that AI does not know your case, your judge, or what is at stake for you, and it has no way to know what you should leave out. Used the wrong way during litigation, it can lengthen your case, damage your credibility, and in some situations end up in front of the opposing party.

At Law Offices of Mark M. Childress, PLLC, we handle divorce and child custody cases, and we are seeing AI turn up in them more and more. We asked two of our attorneys, Rick J. Mitchell, a Partner in our firm, and Desiree A. Hartwigsen, a Partner and our Managing Attorney, where AI creates problems for clients and how they advise people to handle it.

The Most Common Problem We See: AI-Drafted Emails

"The most common use is during email exchanges. AI creates an unreasonable amount of reply because the client honestly doesn't know what to omit, and you get a 'kitchen sink' email that takes forever to prepare a response to," Rick says.

Knowing what to leave out is a large part of what an attorney does. AI has no way to make that call, so it puts everything in, and the client often cannot tell the difference.

"The length of some of these AI-generated emails is insane," Desiree says. "Clients are bringing forward large amounts of information, arguments, and details that may be irrelevant or inapplicable because AI does not have the full context necessary to determine what actually matters in their specific case."

There is a subtler cost too. A polished, AI-assisted message can make a client look more informed than they are, which creates a false picture at exactly the point their attorney is trying to prepare them.

"AI can make a client appear to have a much better understanding of the process or be better equipped to testify than they actually are," Desiree says. "That interferes with our ability to accurately assess and effectively prepare the client for hearings and testimony."

The Risk of Using AI to Represent Yourself

Some people go further than emails and use AI to draft pleadings and handle their own case. That is where the risk climbs quickly.

"Clients are using AI and publishing things that they simply do not understand," Rick says. "If they are attempting to use AI to represent themselves, they tend to frustrate courts with unnecessary and often frivolous pleadings because they do not know when to stop. They do not understand Texas Civil Procedure, and AI is not a course in that."

Courts do not grade self-represented parties on a curve for using a chatbot. The standard is the same one that applies to a lawyer.

"Courts generally hold pro se litigants to the same procedural standards as attorneys," Desiree says. "AI does not replace law school, passing the bar, or the years and decades of experience attorneys develop inside and outside of a courtroom."

The consequences can go beyond a single lost motion. Desiree has seen filings pile up to the point that a court takes formal notice of them.

"I have also seen situations where courts have found individuals to be vexatious litigants, particularly because of the volume, inadequacy, and often irrelevant nature of the filings they are presenting to the court, which can carry financial and other collateral consequences."

Being labeled that way can follow a person through the rest of the case and color how a judge views everything they file afterward.

What AI Cannot Account For in Your Case

Even when AI gives a confident answer about strategy, it is working from general information. It cannot see the specific circumstances that drive real decisions in a courtroom.

"What AI cannot reliably account for are the many other factors we consider: the particular judge, the court, local practice, our experience with similar cases, recent case law, credibility concerns, opposing counsel, and the overall strategy of the case," Desiree says.

Because AI cannot see those things, its advice often differs from what the client's attorney tells them, and clients notice the gap.

"Clients are also using AI to evaluate legal strategies and then comparing those responses to the advice they receive from their attorney," Desiree says. "That can create unnecessary distrust in the attorney-client relationship when the advice does not align."

When the two do not match, it is usually because the attorney is accounting for facts the tool never had, not because the tool caught something the attorney missed.

What You Put Into AI May Not Stay Private

Many people treat a chatbot as a private space. They vent, work through their feelings, and think out loud in a way they never would in a public setting. In litigation, that assumption can be a serious mistake.

"If they would not want the Court or opposing party to see something, they should not put it into an AI chat," Desiree says. "ChatGPT has essentially become a private journal, therapist, and sounding board for some people's most personal thoughts."

Those conversations can later be requested, and they may reveal strategy, admissions, or other issues that become relevant as the case develops.

"My impression from the case law I have seen is that AI communications can be discoverable and are not automatically protected by attorney-client privilege," Desiree says. "That alone should make clients extremely cautious about what they put into these platforms."

Rick raises the same concern from a practical angle, pointing to the everyday records people now generate with AI.

"If you are using AI to create journals, calendars, or other common, discoverable items, it may be requested," Rick says. "If it is used, it probably should be used in connection with the advice your counsel gave, so that the general work product privilege can be asserted."

Both attorneys expect this area of law to keep developing as courts address it. Until it does, their advice is to stay cautious about anything that touches the case.

The One Rule We Give Clients About AI

When we asked each attorney for a single rule, they landed in the same place.

"Stay away unless directed by counsel," Rick says.

Desiree draws the same line, and draws it broadly.

"My position is that clients should not use it in connection with their case at all: not to ask legal questions, conduct research, develop strategy, or formulate long-winded emails to their attorneys."

Neither attorney is against technology. Their concern is that AI cannot see a case the way a lawyer does, and that what goes into it may not stay private. If there is a safe place for it in a particular case, that call belongs to your attorney, not the tool.

If you are going through a divorce or custody case and are unsure how AI fits into it, we can help. Call (817) 383-6062 or contact us online to talk through your situation.

About Rick J. Mitchell

Rick J. Mitchell is a Partner at Law Offices of Mark M. Childress, where he focuses on high-asset and complex property divorce cases. His background in economics shapes how he reads financial records and valuations, and he is trained in collaborative divorce.

About Desiree A. Hartwigsen

Desiree A. Hartwigsen is a Partner and the Managing Attorney at Law Offices of Mark M. Childress. She began her career in criminal defense before moving into family law, where she handles divorce, child custody, child support, and related matters. Her criminal law background is especially useful in family law cases that overlap with criminal issues.