Employee and Employer Contribution Division
401(k) accounts typically include both employee (participant) contributions and employer matching or discretionary contributions. In a divorce, both types can be divided by QDRO, but employer contributions are often subject to a vesting schedule. A participant may only be partially vested at the time of divorce—meaning a portion of the employer contributions could still be forfeitable if the employee leaves the company.
We always recommend specifying in the QDRO whether the alternate payee is entitled only to vested portions or if the order should include any future vesting during the marriage period. Courts sometimes allow post-divorce vesting to be considered marital if the employment continued through the date of division.

