AI and Digital Evidence in Divorce
How Divorce has Changed in the Age of AI
Artificial intelligence is changing more than the way people work, communicate, and create content. It also is creating new questions about something courts have long had to determine: Can the evidence presented to the court be trusted?
Text messages, emails, screenshots, social media posts, photographs, and videos have become commonplace in New York divorce and family law proceedings. A text may document a conversation about finances or parenting. A social media post may become relevant to a disputed claim. A home-security camera may capture an interaction between spouses.
At the same time, generative artificial intelligence has made it increasingly possible to create or manipulate convincing photographs, videos, audio, and written content. This does not mean that courts will suddenly assume that every screenshot or video is fake. However, it does make the rules governing the authentication of digital evidence increasingly important.
In February 2026, the New York Court of Appeals addressed these concerns in Matter of M.S. (M.H.), a Family Court case involving digital video evidence and growing problems posed by deepfake technology.
Although Matter of M.S. was not a divorce case, the decision has important implications for digital evidence used throughout New York family law and divorce proceedings.
What is Digital Evidence in a Divorce?
Digital evidence is a broad category that can include electronically created, stored, or transmitted information.
In a New York divorce or family law proceeding, that may include:
- Text messages;
- Emails;
- Screenshots;
- Photographs and videos;
- Social media posts and direct messages (DMs);
- Communications through parenting applications;
- Electronic financial records;
- Doorbell and home-security recordings; and
- Other electronically stored information.
Depending upon the circumstances, these materials may become relevant to issues involving custody and parenting time, marital finances, equitable distribution, support, compliance with court orders, or other disputed matters.
But finding something relevant on a phone or computer does not necessarily mean that it can simply be presented to the court and accepted as true.
Digital evidence remains subject to the rules of evidence, including requirements concerning authentication.
What is Authenticating Digital Evidence?
Authentication essentially means establishing that evidence is what the person offering it claims it to be. A screenshot that appears to show a text message from one spouse to the other may contain the spouse’s name, telephone number, nickname, or photograph. But that’s not necessarily enough. We need to ask:
- Did that person actually send the message?
- Does the screenshot accurately depict the conversation?
- Has part of the conversation been omitted?
- Has the image been edited?
- Is there other evidence connecting the communication to the purported sender?
The foundation necessary to authenticate digital evidence depends upon the type of evidence and the circumstances in which it is offered.
These questions are not entirely new. Courts have long had to authenticate photographs, recordings, documents, and electronic communications. Artificial intelligence, however, has made the issue considerably more complicated.
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Deepfakes and Digital Evidence
In February 2026, the New York Court of Appeals decided Matter of M.S. (M.H.), a Family Court case involving several videos depicting serious abuse. The videos had come into law enforcement’s possession after an individual reportedly told the FBI that he had hacked into security-camera feeds.
Family Court admitted the videos into evidence, and they ultimately provided the sole basis for findings of abuse and derivative abuse against the children’s mother. The mother challenged their admission on the ground that the videos had not been properly authenticated.
The case eventually reached New York’s highest court, which concluded that the foundation offered to authenticate the videos was legally insufficient. Important, this does not mean that the Court found the videos to be deepfakes or otherwise false.
Instead, it underscores the importance of establishing clear parameters for authenticating digital evidence and videos. This is particularly true when the videos are being used to depict serious allegations of abuse.
How Does AI Change the Authentication of Evidence
There was evidence in Matter of M.S. connecting aspects of the videos to the actual family. Individuals appearing in screenshots were identified, and law enforcement observed characteristics of the family’s home that matched with the recordings. Historically, these kinds of details supported authentication of the recordings. However, the Court of Appelas recognized the problem that deepfakes and AI now pose to this routine.
Deepfake technology can potentially incorporate the genuine appearance of a real person, object, or location into fabricated digital content. A manipulated video could therefore accurately depict someone’s face or the interior of an actual home will inaccurately depicting the events supposedly occurring there.
Can Text Messages and Screenshots Be Used in a New York Divorce?
Yes, text messages and screenshots can potentially be used as evidence in matrimonial and family law proceedings when the applicable evidentiary requirements are satisfied. Depending upon the case, messages might become relevant to:
- Custody and parenting issues;
- Communications between spouses;
- Financial transactions;
- Statements concerning assets or income;
- Compliance with agreements or court orders; or
- Other disputed factual issues.
Authentication will always be important to any potential evidence offered.
A name appearing at the top of a screenshot does not necessarily resolve every question concerning authorship or authenticity. Depending upon the circumstances, testimony, the content and context of the conversation, identifying characteristics, related communications, or other evidence may help establish who sent a particular message.
AI introduces a new dimension to this familiar problem. As tools capable of creating realistic written conversations and altering images become increasingly accessible, courts may encounter more disputes over whether screenshots accurately reflect genuine communications.
What About Photos and Videos?
Photographs and videos can be particularly powerful evidence because they appear to provide a direct visual record of an event.
But Matter of M.S. demonstrates why courts cannot necessarily end the inquiry with what appears on the screen. Questions may arise concerning where the recording came from, who created it, whether it accurately depicts the relevant event, and whether it has been altered.
This may be particularly relevant to recordings obtained from smartphones, home-security systems, doorbell cameras, social media, or other digital sources.
Can Social Media Be Used As Evidence?
Social media posts, photographs, videos, comments, and direct messages may also become relevant in a divorce or custody case. For example, online activity might potentially become relevant when it contradicts a representation concerning finances, parenting, travel, or another issue before the court.
However, social media content is not automatically admissible simply because someone found it online. Questions may arise concerning who created or controlled an account, whether the content has been altered, and whether it is relevant to the proceeding. As with other forms of digital evidence, the particular facts matter.
To read more about social media and its potential impact on your case, read our recent blog on it here.
Can Someone Simply Claim That Evidence Is AI-Generated?
The increasing availability of generative AI presents a challenge in both directions. Courts need to be capable of identifying and addressing fabricated evidence. But authentic evidence should not necessarily become inadmissible merely because someone claims that it could have been generated by artificial intelligence.
Matter of M.S. does not establish that saying “this is a deepfake” is enough to defeat otherwise admissible evidence. What it did establish, however, is that authentication of all offered evidence is critical.
The existence of technology capable of manipulating evidence may affect how authenticity is established, but the ultimate inquiry remains whether there is an adequate basis for concluding that the evidence is what its proponent claims it to be.
So Should I Delete Digital Information Before or During a Divorce?
Individuals anticipating or involved in litigation can be tempted to scrub their social media and digital footprint in an attempt at self-preservation. However, you should always speak with a qualified attorney before taking any step during litigation that could impact you and your case.
Once litigation is pending or reasonably anticipated, obligations may arise concerning the preservation of relevant evidence. Intentionally destroying relevant electronic stored information.
At the same time, individuals should not assume that marriage or divorce gives them unrestricted authority to access another person’s password-protected devices, accounts, emails, or other private information. Questions concerning the preservation, collection, disclosure, or use of electronic evidence should be discussed with matrimonial attorneys based upon the particular circumstances of your case.
What You Write During a Divorce Can Become Digital Evidence Too
Digital evidence is not limited to material that existed before the divorce began. Parties continue creating potential evidence through matrimonial litigation with their digital footprint and routine use of social media.
Divorce and custody disputes often get emotional, and a text or email sent during an argument creates a record that may later be viewed in an entirely different setting. Don’t forget that communications regarding children, parenting schedules, money, property, or pending litigation may potentially become relevant to disputed issues.
So, it is important to remember that electronic communications created during a divorce may ultimately become part of the litigation itself.
AI Is Changing Digital Evidence, But the Rules Still Matter
Artificial intelligence has dramatically increased the sophistication of digitally generated and manipulated content
For courts, attorneys, and litigants, that creates new challenges. A photograph may no longer necessarily document an event simply because it looks realistic. A convincing video may require additional scrutiny. And disputes about the authenticity of screenshots, recordings, and other electronic information may become increasingly common. But the fundamental legal issue is not entirely new.
Courts have always needed a sufficient basis to determine that evidence is what the person offering it claims it to be. The New York Court of Appeal’s decision in Matter of M.S. demonstrates how that traditional requirement is adapting to a world in which artificial intelligence can blur the distinction between authentic and fabricated digital content.
For individuals involved in a divorce or family law proceeding, the decision also serves as an important reminder: texts, screenshots, photographs, videos, and social media can potentially become significant evidence, but their authenticity and admissibility should never simply be assumed.
At Douglas Family Law Group, PLLC, our New York matrimonial and family law attorneys represent clients in divorce, custody, child support, equitable distribution, and other complex family law proceedings.
If you are involved in a New York divorce or family law matter and have questions about digital evidence that may affect your case, contact us to schedule a consultation today!
This article is provided for general informational purposes concerning New York matrimonial and family law only and does not constitute legal, technical, forensic, or other professional advice. You should always speak with a qualified attorney regarding your case before taking any action.
