1. Employee and Employer Contributions
401(k) plans typically include both employee deferrals and employer matching or profit-sharing contributions. While employee contributions are always fully vested, employer contributions may be subject to a vesting schedule. That means only a portion of the employer match may be considered “marital property” by the time of divorce, depending on how long the employee has been with the company.
For example, if the participant is 60% vested in employer contributions at the time of divorce, only that 60% is considered part of the divisible marital estate. The non-employee spouse cannot claim amounts the employee has not yet earned—or that may be forfeited.

