1. Employee and Employer Contribution Division
The Berns Moving, Inc.. 401(k) Plan likely includes both elective deferrals from the employee and possibly matching or profit-sharing contributions from the employer. Under divorce law, both types of contributions are typically marital property if earned during the marriage.
However, it’s critical to note:
- Only the vested portion of the employer’s contributions can be divided unless the plan participant later becomes fully vested.
- Your QDRO needs language that explicitly handles these issues—for example, indicating that any unvested amounts are excluded or conditionally awarded.

