Employee vs. Employer Contributions
In many 401(k) plans like the E & E It Consulting Services 401(k) Plan, contributions come from both the employee and the employer. Only the vested portion of employer contributions may be divisible in a divorce. Any unvested funds, depending on the vesting schedule, may remain with the employee participant.
The QDRO should be clear on whether it applies only to vested funds as of the divorce date or if it includes future vesting. Fighting this battle after the fact can be costly and delay distribution, so careful drafting is essential.

