1. Division of Employee and Employer Contributions
401(k) plans often consist of both employee contributions (which are always 100% vested) and employer contributions, which may be subject to a vesting schedule. When dividing the Gates & Sons Inc.. Retirement Savings Plan, it’s critical to determine whether the participant was fully vested in employer contributions at the time of divorce.
If the plan uses a graded or cliff vesting schedule, any unvested portions may be forfeited upon termination or divorce. The QDRO must explicitly state how to treat those unvested funds. You don’t want to assign 50% of a balance that may drop significantly if vesting hasn’t occurred.

