Thinking of a ‘DIY’ divorce? Ontario lawyer warns why relying on an AI chatbot could cost you in court

Couples may turn to artificial intelligence to draft separation and divorce documents, in an effort to save on legal costs.

That decision could backfire, however.

Toronto-based family lawyer Russell Alexander, who has authored four books on separation and divorce, including “AI and the Legal Profession,” said AI can be useful for general education, but shouldn’t replace professional advice, especially in matters of separation and divorce.

Relying on AI as a substitute for advice from a human lawyer could result in the denial of your divorce order, loss of child custody or a reduction in child support if AI-generated documents are relied upon in court.

Divorce Day rush to decide The holiday season is a time for family get-togethers, fellowship and cheer. But for married couples considering separation or divorce, Christmas can mask feelings of discontent.

Alexander has dubbed the first Monday in January “divorce day,” citing it as the day when the most married couples come to the realization it’s time to call it quits.

lexander said ChatGPT, a generative artificial intelligence chatbot developed by OpenAI, has scaled back the level of legal and medical advice it provides to the public.

A few months ago, the AI chatbot could have prepared a separation agreement for a spouse or couple petitioning for divorce, for example.

In changes to its usage policies on Oct. 29, ChatGPT users are cautioned against using the service for “tailored advice that requires a licence, such as legal or medical advice, without appropriate involvement by a licensed professional.”

“It used to provide what a lawyer would try to provide in terms of specific advice to your particular family situation,” Alexander explained. “Now they’ve scaled that back so they’re no longer providing advice for lawyers or medical professionals the way they were.”

How to properly use AI as a starting point for research ChatGPT can be a good starting point to learn about legal terms and concepts. Alexander said the tool remains useful for general legal information. It can help clarify concepts such as equalization of net family property, which outlines how property is shared following a divorce.

“But you really need to see a professional to make sure that you’re not missing anything and that the information you’re getting is correct and that you’re applying it correctly to your fact scenario,” Alexander cautioned.

When you speak with a lawyer, your communication is privileged and private. Alexander noted clients may face privacy concerns when entering personal information into an open AI model.

Danger of ‘kitchen table’ agreements Alexander said families have been relying on faulty legal advice since well before the advent of AI.

Clients may come to a lawyer’s office with a “kitchen table” agreement based on advice they found online, or from a friend or acquaintance. These agreements often rely on a fill-in-the-blank approach, using a templated document found online.

“The problem with that is oftentimes the kitchen table agreement was wrong,” Alexander said. “It could have been based on case law from the U.S. or it applies the wrong legislation.”

A kitchen table or AI-generated agreement may inaccurately calculate child support payments, for example. Families could miss filing deadlines and face delays or added legal costs if they present an AI-generated agreement to a judge.

What AI could miss When preparing for a divorce or separation, each spouse should have a lawyer who considers the incomes and assets of each party, as well as child support and custody considerations, to make an informed decision.

Both sides should have independent legal advice and lawyers should ensure their clients are not under duress.

“AI doesn’t take any of those steps,” Alexander noted. “And oftentimes the agreements we see don’t comply with the legislation.”

AI hallucination In one example, a couple may present an AI-generated separation agreement that fails to provide for child support. The couple may come to court thinking they have a binding agreement, but if the AI-drafted document missed the child support consideration, the judge could deny the divorce order because it didn’t comply with the legislation.

In other cases, AI can generate inaccurate information, known as AI hallucination.

“It just makes stuff up that doesn’t exist,” said Alexander. “We see this with legal precedents, factum and citations to case law that doesn’t exist and lawyers are handing this into court and asking judges to rely on it.”

Lawyers have a duty to provide correct information to the court and when they rely on faulty AI advice, it shows up in the press, Alexander added.

Last year, CBC News reported on a B.C. lawyer who was reprimanded for citing fake cases invented by ChatGPT.

Added legal costs If you file court documents based solely on AI advice, you may not know what you’re agreeing to. If a judge finds the document was AI-generated, it could also impact your credibility in court.

“If it goes to court and the judge reviews it and it’s an AI-generated document that’s clearly misleading or incorrect, you’re also probably going to be on the hook to pay legal costs to your spouse’s lawyer,” Alexander added.

Ontario family law is constantly changing, Alexander added, including recent amendments to child support guidelines made in recent weeks. AI advice may not reflect the latest amendments.