Employee and Employer Contributions
In most divorce cases, the portion of the 401(k) earned during the marriage is considered marital property. But the 401(k) plan likely includes:
- Employee deferrals: These are fully vested and belong to the participant but are divisible under a QDRO if earned during marriage.
- Employer contributions: These might be subject to a vesting schedule, meaning only the vested funds are divisible. Check what the vesting schedule is and know that unvested portions may be forfeited if the employee leaves.
Make sure your QDRO clearly identifies how both types of funds will be handled.

