Employee vs. Employer Contributions
Any amount the participant contributed through salary deferrals is already 100% vested. But employer contributions (profit-sharing or matching) may be subject to a vesting schedule. That means part of the account could be unvested — and not available to the spouse — depending on how long the employee has worked there.
When drafting the QDRO, it’s important to specify whether you’re dividing just the vested portion of the account or if future vesting is included in the settlement terms. We typically recommend stating that only the vested balances as of a set date (usually the divorce or cutoff date) be divided, to avoid confusion later.

