Employee Contributions vs. Employer Contributions
One crucial part of QDRO drafting is correctly dividing both employee and employer contributions. Typically:
- Employee contributions are always fully vested and can be divided between spouses.
- Employer contributions may be subject to a vesting schedule. If the participant spouse is not fully vested, then only the vested portion is divisible under a QDRO.
This can cause confusion when divorces finalize while the participant is still working. It’s critical to define how unvested amounts will be treated—will they be excluded, included if they vest later, or divided only if future service makes them available?

