Jessica: Unless you live under a rock, you’ve heard of what’s happening with artificial intelligence and deep fakes, images and information that is not true, but that can be sent out looking and even sounding as if it is. This kind of stuff is really scary, but what about the possibility of it impacting your divorce? What if your ex were to use these types of things to make you look like you’ve done something wrong, or aren’t showing up as a good parent? That’s what we’re talking about today on Divorce etc… with family law attorney and one of our most favorite people, Susan Guthrie. We’re the exEXPERTS, Jessica and T.H. We focus on helping you navigate your divorce and successfully moving on with your life. Please follow us on all social media at exEXPERTS, and check out www.exexperts.com for tons of free divorce related resources. Let’s bring in today’s guest.

T.H.: Hey, guys, I am so excited. Because when I emailed Susan Guthrie about this topic, she’s like, “I’m all over it. I got it. I’ll take care of this. Let’s get out there and start educating people.” Susan is a huge advocate of exEXPERTS and Divorce etc…, and we so appreciate all of your support, all of your sharing, all of it. She also has the same purpose to help people settle, to be educated, to empower women. She is mediator extraordinaire among a million other things. But she is our exEXPERT on the show today. Welcome to our show.

Susan: I’m so happy to be back here with both of you. I am, as you know, a huge fan. So, I’m thrilled.

Jessica: We’re so happy to have you. It’s a love fest. It’s mutual. The feeling is mutual. Seriously, this whole AI situation, I feel like when people generally first started thinking about AI, we’re thinking about ChatGPT and what can it maybe do to help you automate your newsletter, things like that. When did you first start getting an inkling that this sort of thing could actually find its way into the divorce realm?  

Susan: Yeah, it’s such a good question. Because of things like ChatGPT, which exploded in the last year, a few months, people think AI is something new. AI has been around for years and years and years. Deep fakes have been around for years and years and years. It’s just that I think everyone suddenly is aware of it. We’re starting to see, because of the preponderance and this great rush to using AI, just as there are many wonderful uses of it, when you have a new technology, if there are bad actors out there, they’re going to jump on it. And so we’re hearing a lot more about people scamming people and doing those things. It certainly has the potential to be ill used in the family law arena. In fact, it has been. It’s not that it’s new or somebody’s just suddenly tried this, there are cases already out there. But now people are more aware. I’ll tell you, Jess, I got a little nervous about doing this episode because there are two thoughts on this. One, people need to know it’s possible so they can be aware of it and combat it. And are we going to give people the idea that they can use AI to go and try something that they shouldn’t be doing? I’m going to layer in some of the cautions about this, the criminal aspects of it too, so that people are aware this is not something they should be considering doing in their family law case.  

T.H.: Absolutely not. I was thinking about it as I was speaking to one of our sponsors, that now people going through divorce are trying to prove their innocence. They’re just spending so much time trying to prove something that was dug up to be wrong. And so where do you even start with doing that? Are the courts even up to date to handle this type of a situation? I know it’s limited to every state, to every judge, to every divorce, but holy crap, what do you even do?

Susan: Yeah, and really where the focus should be, so a great way to put it and to ask a question. Because the way that—I’ll say artificial intelligence—or the biggest concern is the use of AI to fabricate evidence, right? To fabricate evidence, be it a video or an audio recording or a photograph, typically what are known as deep fakes, that in some way provide evidence of wrongdoing of the other person for whatever reason. Right, so exactly what you’re talking about, T.H. That’s why it’s such a good question, because it’s now the person creates evidence that isn’t real but looks real, and now you put people in that position of having to disprove something that’s not true. Frankly, it goes back to why we have no fault divorce, right? We have no fault divorce so people don’t have to prove that there’s fault just to get a divorce. Well, this is putting people in that same position of, “Oh my God, my ex just said I had an affair and showed a video of me with a guy or something that’s totally not true. I’ve never seen that guy before in my life. But now how do I prove that’s not me on that video?”

Jessica: But I feel like, to me personally, what’s even scarier than things like that, as disgusting and vile is that is, the idea that people could be creating fake evidence, deep fakes and things like that when it comes to them and their children.

Susan: Yeah.

Jessica: That to me is the really scary part. Because even if you live in a no fault state, if there is somehow photographic evidence or video evidence of you mistreating your child, or doing something that can be deemed abusive—

T.H.: Being an alcoholic, or negligent, or all the things.  

Jessica: Yeah, and there aren’t that many cases out there that are public record, where a deep fake has been used. Now realize there’s a reason for that. One, we don’t know how many times it’s been used and been successful. We only know of the cases where somebody proved that they were deep fakes. The two cases that I could find that centered on this are both about custody of the children. There was apparent fabricated evidence in a deep fake sort of way using artificial intelligence. One was to show that the other parent had had an affair and conducted themselves in a sexual fashion with their paramour in viewing of the children, causing emotional distress for the children. The other one was that the parent was verbally abusive of the children, and purported to be a recording of the parent berating the children. Neither of them was true.

T.H.: How did they figure out it wasn’t true? Were you able to see that?

Susan: Well, very limited insight into it. But it’s the same way that I think it will happen is the problem here is the onus now, and the burden, as we call it in a courtroom, gets put on the person who hasn’t done anything wrong to prove that. In most cases, it means bringing in an expert witness. It means bringing in somebody who has the ability to prove that this is a manipulated piece of evidence, manipulated audio, video, etc. That’s what happened in both of those cases. Here’s the problem: AI is hard to detect in a lot of cases. There aren’t that many experts who do this. And guess what? It costs a lot of money.

Jessica: It costs a fortune.

Susan: Exactly. And so that is going to absolutely be the problem. To what you said, T.H., earlier, the courts are absolutely not prepared for this. In fact, they aren’t going to do the investigation. The onus is on the person who’s trying to disprove the piece of evidence. The issue is going to come up because when you proffer evidence, when you put it forth to be viewed by the court, you have to lay a foundation for it. That’s under the code of ethics, no matter where you are. You can’t just willy nilly say, “I’m going to show a video to the court,” right? You have to be able to proffer that properly. One of those things, and the challenges that are going to happen, is where did you get it? Is it a Ring camera? Did you take it on your phone? Did you hire a PII? Where did it come from? There has to be a foundation. A lot of the argument will come in before the video is ever reviewed, or the photograph is ever seen, and the person has to prove its provenance. But it’s still pretty tricky because these things, and here is where AI scares everyone, they look really real.

Jessica: Yeah.

T.H.: Yeah. I mean, there was a time when Jessica and I would talk about the fact that we’re actually very lucky we got divorced when we did, because technology is nothing like it is today. Now you can be tracked. You can be hacked. You can be taking all my emails without me knowing. I can be recorded and not even know it. But now AI takes it to a whole other level. How did people dispel the rumors that came just from those things? People set up scenarios all the time, and by way, everybody, it’s so much effort. If you just want to move on with your life, then just move on with your life, because otherwise, you’re spending hours and money and emotion that’s not going to go anywhere. It’s just going to keep you in the same spot for years. Do not do this. Like Susan said, we are not encouraging you to.

Susan: This is not a how to audio.

T.H.: This is not.

Jessica: No, for sure.

T.H.: This is a do not do, and what if.

Jessica: Right. It’s interesting too because the last conversation we had with you, which was a while ago, was about what to do or not to do when it came to social media. I was having a conversation with someone recently, and she’s dating someone new, they just got divorced within probably the past year or two. Her boyfriend, I guess there are issues with the ex, he has something in his divorce agreement prohibiting Facebook posts of the kids by her and things like that. I was like, no one was posting on Facebook when we when we got divorced. We really did escape all of that. But to that end, Susan, like T.H. was saying, I’m stuck on what people could do to prevent it, because you don’t even know that it’s being done.

T.H.: What are the top questions, that if you feel you’re being framed, that you should be posing to bring uncertainty around it and disprove it? Certainly, you have to hire an expert, but what are some of the questions they should be asking so the person who spent all this waste of time feels like they spent a waste of time?

Susan: Right. That’s such a good question because it’s really how do you attack the evidence. They’re putting it forth, so what do you need to do to attack it? Really, it has to be, where did you get it? They call it in criminal cases the chain of custody. It’s the same thing here. Did you take the video on your phone? Well, who’s had access to it? Could someone else have changed it? Did you change it? Did you give it to anyone? When did you give it to your lawyer? Did your lawyer give it to anybody? I hate to think that members of my profession will participate in the manufacturing of evidence. Certainly, that would be incredibly unethical, and in some states, illegal. Not many states though, let me point that out, and we can talk about that in a minute. But if this is brought into your case, and I really think it’s going to be brought in most of the time, at least now in these earlier days of this being used, will be brought in as the fake evidence. But you have to attack the evidence. You have to come at it from, “I remember that day when that video was taken, and that absolutely is not…” “Yes, I was at Starbucks,” or “Yes, I was helping the kids get out of their car and the Ring camera caught me helping them out of the car. But no way did I take a backpack and hit one of the kids with it,” or something like that. You’re going to actually have to start to pull together. In one of those cases I referenced, that’s how the woman defeated it. It wasn’t that she showed it was a deep fake; she had the original Ring camera and was able to show that they had altered. She just showed the regular video.

Jessica: That’s crazy.

Susan: She’s super lucky that she still had it. How they got the feed, he must have also been on the Ring cameras still on the account. He pulled it, but she still had access to the original. It’s really circle the wagons and figure out how you’re going to prove this is not real.

T.H.: Wait, I just want to say one note. If you have a Ring camera, make sure that you turn on the button to put it in the cloud. Because I do not save the history, I only get five prior days, and the rest is gone. So if you’re in any kind of dispute, get it up on the cloud. Okay, that’s my public service announcement.

Susan: And change your passwords.

T.H.: And change the passwords. Yes.

Susan: And remember they’re there, right? People come and drop off the kids and get into an argument at the door with their ex all the time. Guess what you are doing? You are creating a video of you having an argument and saying whatever you think you’re saying to your ex. Don’t forget they’re there.

Jessica: Do you always have to show the other side your evidence? If someone had made that and was planning to present it as evidence in a hearing, do they have to show those videos and photographs to the other side before you get to court?

Susan: Yeah, I mean, and that’s a good point. It is not like Perry Mason where—

Jessica: When you’re surprised.

Susan: —what’s a current TV show. “Yeah, and we’re now going to show a video that’s dispositive.” It is supposed to be ahead of time. It’s supposed to be proffered for being proven so the other party has the opportunity to satisfy themselves that it is a legitimate piece of evidence. We are not supposed to, especially in family courts, where we don’t want to be concerned with taking up the courts valuable time having hearings over whether it’s real evidence. We want to get that done ahead of time so we can talk about the actual issues: what’s in children’s best interests, etc. That is all supposed to be taken care of ahead of time. The way counsel tried to get around that is, “We just recently got a hold of this.” But then you have that whole, “Well, when did you get it?” These days, there is a digital footprint for most things. But again, your expert is going to need time to go into that, and the money to pay them to do that.

T.H.: We’re just going to pause for a quick moment here. Because we know it’s hard to get honest and reliable information about your divorce and how to move on from it, so we’ve done the work for you. As the exEXPERTS, we get questions every day from people looking for a trustworthy resource to support them through this difficult time. From the legal, the money, the kids, your self care, and all of the stuff, we cover it all at www.exexperts.com and here on our Divorce etc… podcast. Be sure to subscribe to our weekly newsletter to hear directly from us as we educate you on how to navigate your way through divorce and get what you need and have what you want. Just visit www.exexperts.com. We’ve lived it, so we get it.

Jessica: Susan, I want to ask you, with regards to the money of having to go through the process of disproving something that’s you’ve been accused of, is there a way, and maybe it’s state specific, but if I have to spend $10,000 to disprove a fake Ring camera video that my ex created, can I get him to have to pay for that in the end? 

Susan: Probably. But I would say that would be in most jurisdictions. I don’t know too many judges where you would have to go and spend thousands of dollars on an expert who proves—this is making a presumption though that they can prove that it was a fake and that you manufactured it—yes, you would likely be able to get a sanction. You might be able to get even more than just what it costs you. You might be able to get a sanction, like some sort of penalty. In addition, and I should point this out so that people don’t think this sounds like a good idea to go try this, when the court finds out you manufactured evidence, how likely do you think it is that your position is going to be upheld? In both those cases that I talked about, where they did prove that people had manufactured, those parents lost custody of their children.

Jessica: The ones who created the fake evidence?

Susan: The ones who created the fake evidence. The other parent, who was the blameless parent—maybe not blameless; I don’t know the underlying facts—but who did not partake in the manufacturing of evidence—I mean, that’s committing a fraud on the court—those parents ended up getting custody of the children. In some states, I will tell you there are either criminal actions that can be taken. It is a crime. Now it usually is in cases where you have created a pornographic video with one of the parties involved. Those are usually the ones that are criminal—that’s Hawaii, Texas, Virginia, Wyoming. But New York and California, and I think a lot of states are going to follow, they also allow a separate private cause of action, which could be things like intentional and negligent infliction of emotional distress: tort actions.

T.H.: Absolutely. It is emotional distress.

Susan: Yes! Think how upsetting it would be to be dealing with this. Your community knows about it. Maybe this video is shown in court subject to the video, or you just have to see a video of yourself that’s not real. There can be a lot of repercussions to this, a lot of negative repercussions to this that we all know.

Jessica: Those two cases happen to have been related to child custody issues. But I would venture to say that if anyone were to try something like that, even if they didn’t have kids, just because they didn’t want to have to pay a certain amount, what you’re saying to me rings true. I would imagine the judge would be like, “You’re so scummy that you’ve gone to these extents. You are going to have to pay.” And maybe more, do you know what I mean? I feel you’re going to be penalized somehow. Your position is not going to be favored by the judge.

Susan: No, and the complete opposite.

Jessica: Right.

Susan: Yeah, judges have discretion. The best example I can give doesn’t have anything to do with AI. But I had a client once, who during the divorce, got a big inheritance and didn’t want to share any of that inheritance with her soon to be ex spouse. Whether she would have had to, is still in question. I don’t even think she would have. She didn’t tell me about it. She just hid the money, never disclosed it, and gave it to her son to hold on to. The divorce went through, and it was never mentioned. Then the son, after the divorce, told dad about it. He comes back into court and says, “Your Honor, she hid money. She committed a fraud on the court. She lied when she said she had disclosed everything.” You know what the judge did? They gave him 100% of the inheritance.

Jessica: How could he give him 100%?  

Susan: Because the judge had discretion in the disposition of property. In that particular state in which I practice, the judge had 100% discretion and felt that her malfeasance and fraud on the court warranted giving him 100% Now that might not happen in all states—and he sent it to the prosecutor for review to see if charges of criminal fraud should be brought, and perjury, by the way, and perjury for lying.

T.H.: Another PSA is, do not lie in court. Do not lie. You know you’re going to get caught.

Susan: It’s a crime.

T.H.: It is a crime. So do not lie. Listen, divorce sucks. The three of us agree with it. Hundreds of thousands of us agree with it, right? But don’t go down that road, because you’re not going to recover from it. It’s a reflection of you as a professional, as a parent, as a child, as a friend. Your whole reputation will be destroyed for what? For what—so that you could get 10% more time? I never really thought about percentage until I was getting a divorce, and I’m like, “50% custody? Okay, I guess I get 50%. What the fuck does that even mean? I’m always on. You can’t call me the other 50% of the day? What is that?”

Susan: “Yeah, don’t call me. Call your dad.”

T.H.: It’s not worth it. The other thing I wanted to bring up is, I know in my case, my ex made us hire custody experts. He’s MIA for four years, appears, and now I’m being questioned as a parent. His fiancée is participating in all of this. I remember how that felt, being questioned as a parent, like, “Are you kidding right now? You were good with me for four years, and now we’re not good? And who is she? She’s met them twice and now she’s in a custody expert evaluation?” I know how it would feel if any of those deep baked kinds of things would happen. Because you work very hard on your self confidence, and you’re going to be strong through the process, and you’re going to find your identity, and you’re going to rise above, and then someone just literally shoot you in the face.

Jessica: Yeah.

T.H.: And so, listen, that’s a reflection on the people who do it. So if you are a victim in any of these ways, I totally get it. But it’s a reflection on them. But at the moment, it sucks. It’s fine to be pissed, okay? But then rise above after, and don’t let it suck you in and suck you down.

Jessica: I’m curious, Susan, that little Ring camera tip to make sure you change your password, and then T.H. is like, make sure you have it go to the cloud regardless, do you have any other pieces of advice for people with regards to things that could maybe be helpful for them if they were to be accused of something after the fact?

Susan: Yeah. Actually, I have an episode coming up on Divorce and Beyond about this soon. This is something that people forget all the time because we live in a world where we are tethered to our technology. It’s not just check your Ring camera account; think about all the accounts that you have that your soon-to-be ex or ex probably has access to as well. Your Nest inside your house—we’ve got cases where people are using that to raise the temperature super high in the house, who turn on music through Siri or Alexa super loud at one o’clock in the morning, or turn the lights on and off, or lock the doors. I mean technology really runs our lives in our smart houses these days, right? Think about the iPad that you use to run your smart house. Is it signed into your Apple account so your ex can now see everything that you’re doing because they sign into the household account and into your Apple account? If they can get into your Netflix account, they can see what you’re watching. I mean, you have to go through and truly change every single password, every single technology. If you need to start over fresh, throw out all the Alexas. Get new ones. Give them to them, those Ring cameras, or turn them off at the time, all your social media accounts, as we talked about in that last episode. We’re going to go into a lot of that. I mean, just everything even into your phone, because you may even want to have your phone taken in and have it swept, or your computer, to make sure they haven’t put a copying. You want to have your house swept. I mean the Air tags these days and the different ways that people can track you have gotten crazy. There’s one more AI thing that I think is actually very concerning, that goes beyond deep fakes, that I do want to make sure we mentioned for people. Because the other way— 

T.H.: Wait, I just want to say two other tips of things to do. Turn off your location services on your phone. There’s a way to make it private, and you can pick which apps you allow location services for. You can put it on only while you’re using that app, and then it’s deactivated so you can’t be followed. The other thing that we always tell everyone that we work with is start a new email. Start a new email, whatever it is, for all your communications about your divorce, your divorce plans, and your personal plans. Keep your other one light and whatever, and start a new email address just to be safe.  

Susan: The other thing to the location, if your kids have devices that are sharing location and your kids are with you, your ex is going to be able to track you through your children’s devices as well. You need to be aware of that. Those are really good points. I’m glad you mentioned them, T.H. They’re really important. The other aspect of AI that I think is concerning is, and it’s the way I think hear about it being used more in the world today, is the phishing, where they’re using AI to create really realistic websites or accounts or outreach to you to get your information. Well, your ex can do the same thing using AI to create a Chase bank inquiry that you might then hook them up to your bank account or give them information. Again, I hesitated to even mention this because I don’t want to give people that idea. But really, you need to be incredibly careful whether it’s somebody else phishing for your information, which is on the rise because of AI, or just understanding it might be your ex doing it. Because I think we’re going to start seeing a lot more cases of that as well, where they’re going to get your information, and I don’t know how you’re going to be able to prove that they did that.  

T.H.: Well, you can check with your bank. Whenever I get any inquiry that has to do with finances, I mean, Jessica and I get so much stuff about payments we’re getting and all this stuff, and I’m like, “Spam, spam, spam, junk.” But I did get one from our bank, and I called the bank. I’m like, “What is this?” They’re like, “It’s spam.” Don’t even respond in an email. Just go to your local bank or call the bank and say, “What is this?” and you’ll know. You’ll know if it’s real or not. Don’t be a sucker.  

Jessica: The only way to disprove that would be similar to the whole AI thing, you have to hire someone who can go back and track the IP address from where the original email came from and things like that. Honestly, if someone is savvy enough to create something like that, then they probably have other systems behind them as well. It’s a scary world out there. It’s a scary world, and it’s scary that there are people’s minds that think that way and put you in a position of such vulnerability. I would never even think of those things, so it would never occur to me that I could potentially be victim to that.

T.H.: Can you also have people speak on your behalf? In my divorce, I had to depose people just to prove what I was suspicious of having happen. It had nothing to do with the cheating. And so if you’re being accused of being an abusive parent or this parent or that parent, and you have a best friend, and your kids are always at their house and they’re always with you on the weekends, it would probably help to have people speak on your behalf, no, to disprove the AI?

Susan: Well, it would, except now you’re disproving the fake, right? Now the fake has gotten in, so it’s the second step. What you really want to do is get the fake out and not let the fake be even part of the evidence. Because once it’s in, it’s presumed that it’s correct. Now you’re combating it. Now you’re in second tier disaster mode, which you never want to get to. You want that to never be brought into that courtroom. You don’t want the judge to see it. You don’t want it ever disseminated out there. Yeah, once it’s in, then you’re in cleanup mode. You’re doing what you can to “That wasn’t me.” You’ll testify, right? You’ll testify as, “I remember that day. That wasn’t me.” You’re going to bring in your best friend who you just had lunch with, all of that.

Jessica: That would make sense to bring someone in. Because if there was something and it was time stamped and you have proof of evidence that you were actually in a different location or something, then obviously, that can be super helpful when it comes to trying to defend yourself against any of that. But look, it’s like we all document our lives all the time, but we also all delete the shit we don’t want and get rid of stuff. The idea that that woman had to go back in her Ring camera and find that video to be able to show the original is just bonkers.

T.H.: And thank God she was able to. 

Jessica: Thank God she was able to.

T.H.: Because all my stuff’s gone. If anything happened, I would be stuck.

Jessica: Right, right. Well, Susan, this was super eye-opening.

T.H.: Important, really, really important.

Jessica: Very important, yeah, for everyone to know. Everybody who’s listening, you may not be in a situation where something like this might happen to you, but you might know someone that this could happen to. Make sure that you and people around you are prepared. If you enjoyed this episode of the Divorce etc… podcast with the exEXPERTS today, then also can you please help a few girls out? Take a moment to subscribe, rate, and review to our Divorce etc… podcast because that actually helps to bump it up on the lists on podcast platforms so more people can find us, and we can help support them too as they’re going through divorce and beyond. Check the show notes for more info on Susan and her podcast Divorce and Beyond. That’s what it’s called, right?

Jessica: Okay. And of course, share this with anyone you know who can benefit from listening. Have a great day.