Employer and Employee Contributions
401(k) plans typically include both employee salary deferrals and employer contributions. The QDRO needs to clearly specify which contributions are to be divided. In this plan:
- The employee’s salary deferrals are almost always 100% vested and can be divided at time of divorce.
- Employer contributions (match or discretionary) may be subject to a vesting schedule. Only the vested portion can be divided via QDRO.
If the participant is not fully vested, the QDRO should clarify that only the vested balance is marital property, unless state law or your divorce agreement states otherwise.

