Employee vs. Employer Contributions
The first step is determining what portion of the 401(k) is divisible. Employee contributions (money the employee actively added) are always considered divisible. Employer contributions (matching or discretionary) might not be if they weren’t vested at the time of divorce or the cutoff date agreed upon.
This is why the QDRO must clearly state whether:
- Only vested amounts will be divided
- Non-vested employer contributions are excluded
- The alternate payee will receive gains and losses on their share

