Employee vs. Employer Contributions
In a divorce, employee contributions are typically 100% vested. These are the amounts the participant paid into the 401(k) from their paycheck. However, employer contributions—like matches or profit-sharing—may be subject to a vesting schedule. If the participant’s not fully vested at the time of divorce, some of the employer contributions could be forfeited or not yet eligible for division.
The QDRO must clarify which portion of the account is marital property and whether it includes only vested amounts or a share of unvested employer contributions. We recommend reviewing a recent plan statement and Summary Plan Description (SPD) to determine vesting and contribution breakdowns.

