1. Employee vs. Employer Contributions
401(k) plans often include both employee deferrals and employer matching contributions. In a divorce, both types of contributions are typically considered marital property, at least partially. However, employer contributions may be subject to a vesting schedule—meaning the participant may not be entitled to the full employer portion yet.
During QDRO drafting, it’s important to distinguish between:
- Employee contributions which are always 100% vested
- Employer contributions which may be only partially vested depending on time with the company
If the QDRO mistakenly awards a percentage of non-vested funds, the alternate payee (usually the former spouse) might never see that money.

