Separate Employee and Employer Contributions
401(k) accounts typically include amounts contributed by the employee (from their paycheck) and potentially matching or profit-sharing contributions made by the employer. These two types of contributions may have different vesting schedules. A poorly worded QDRO might mistakenly award a share of unvested employer contributions—only for the recipient spouse to later find that those amounts were forfeited due to lack of vesting.
To avoid surprises, we recommend:
- Clearly stating that only “vested” balances shall be divided
- Specifying as-of dates for determining account balances
- Being careful with language regarding employer contributions

