Employee vs. Employer Contributions
401(k) accounts typically include employee salary deferrals and employer matching or profit-sharing contributions. One key issue to sort out is which portions are “marital” and which are not. Here’s what matters:
- Only contributions made during the marriage are subject to equitable or community property division.
- Employer contributions may be subject to vesting—if they’re not fully vested as of the divorce date, they may be forfeited or excluded.
That’s why your QDRO must be drafted to specify how to treat employer contributions, including whether to allocate only vested portions or reserve unvested amounts until vesting occurs.

