Employee vs. Employer Contributions
401(k) plans often include both employee salary deferrals and employer-matching or profit-sharing contributions. In a divorce, you’ll need to determine:
- Whether only marital contributions (typically from the date of marriage to the date of separation or divorce) will be divided
- How employer contributions made during the marriage are treated
- Whether unvested employer contributions will be included (usually they are not)
The plan’s vesting schedule plays an important role here. If the employee hasn’t met certain service requirements, some of the employer contributions may not be vested and could be forfeited if the employee leaves the company. A QDRO must clearly define whether the alternate payee will receive only vested funds at the time of division or future-vesting amounts too (if allowed).

