1. Employer Contributions and Vesting
Most 401(k) plans include both employee deferrals and employer contributions (such as matching funds). Critically, employer contributions often have vesting schedules. That means if the participant hasn’t worked long enough, those contributions—or a portion of them—may not be considered “vested” and can be forfeited if they leave the company.
When writing the QDRO, it’s essential to separate vested from non-vested funds. You can choose to:
- Include only vested funds as of the date of division, or
- Include a clause allowing for future vesting based on employment continuation
Our job is to find which option makes the most legal and financial sense for you and reflect that accurately in the order.

