Employee and Employer Contributions
Participants in 401(k) plans often make regular employee contributions and may also receive employer contributions. In divorce, the non-employee spouse may be entitled to a share of these contributions based on the length of the marriage overlapping with plan participation.
The tricky part is employer contributions are often subject to a vesting schedule. If the participant isn’t fully vested, some employer contributions might be forfeited if the job ends. A well-drafted QDRO must address:
- How to determine the marital portion of the account
- Whether the alternate payee should receive a share of vested amounts only or all contributions
- What happens to unvested funds if they become vested later

