Employee vs. Employer Contributions
The participant’s own contributions are always considered “vested”—they fully own those. Employer contributions, however, may be subject to a vesting schedule. If a portion of the account balance isn’t vested at the time of divorce, the non-employee spouse has no rights to that unvested amount.
In your QDRO, you’ll want to make sure that only the vested portion of the account is divided. We often draft QDROs using language such as: “50% of the vested account balance as of [date].”

