1. Division of Employee vs. Employer Contributions
A 401(k) can include contributions made by the employee (through direct paycheck deferrals) and matching contributions by the employer. Unless otherwise dictated by the divorce agreement, both types of contributions earned during the marriage can be subject to division. However:
- Only vested employer contributions can be divided by QDRO.
- Unvested portions are generally forfeited and not available to the alternate payee.
This makes understanding the participant’s vesting schedule absolutely essential.

