Employee vs. Employer Contributions
In 401(k) plans, employee contributions are always 100% vested. That means the part your spouse contributed from their paycheck is available to split. However, employer contributions (such as profit sharing or matching funds) may be subject to a vesting schedule.
The QDRO must specify whether the alternate payee will share in only vested employer contributions, or whether non-vested portions should also be included, for potential payout later when those amounts vest. Most plans don’t automatically include future vesting of non-vested employer contributions unless the QDRO clearly states it.

