Employee and Employer Contributions
401(k) plans usually involve contributions from both the employee (participant) and the employer. The employee contributions are always 100% theirs — those are not subject to vesting. But employer contributions typically are. That’s where we see mistakes in unqualified QDROs.
If the spouse is awarded a percentage of the account, it’s crucial to distinguish:
- How much of the employer match had vested at the time of separation or divorce
- Whether to include gains or losses on the awarded share
- Whether pre-marital account entries should be excluded
Getting this wrong could result in an over-award that the plan won’t process—or worse, a spouse receiving less than what was agreed upon in the divorce judgment.

