Employee and Employer Contributions
Most 401(k) plans have both employee-deferral and employer-matching contributions. These amounts may not be fully vested at the time of divorce. In the QDRO process, it’s critical to:
- Distinguish between employee and employer contributions
- Account for only the vested portion of employer contributions unless otherwise negotiated
- Clarify how contributions made after the divorce date will be handled
If the employee’s contributions are 100% vested but the employer’s match is on a graded vesting schedule, the QDRO must be written carefully to ensure the non-employee spouse doesn’t receive unvested amounts unless agreed upon in the divorce decree.

