Dividing Employee and Employer Contributions
The first step is understanding what types of contributions are included. Most 401(k) plans include:
- Employee Contributions: These are always 100% vested and can be divided based on any date-of-division in the divorce decree.
- Employer Contributions: These may be subject to a vesting schedule, which can mean the employee does not own the full amount yet. A QDRO needs to clearly state whether the alternate payee (the ex-spouse) will receive any unvested employer contributions and how forfeitures should be handled.
It’s important to use exact language in the QDRO to identify which parts of the account are being split and how. At PeacockQDROs, we draft QDROs that take into account the specific vesting percentage at the time of divorce or distribution, so there are no unpleasant surprises down the line.

