Employee and Employer Contributions
Most 401(k) plans consist of two categories of money: employee contributions and employer contributions. In divorce, both can be divided—but you need to understand how each is treated:
- Employee Contributions: These are always 100% vested and available for division.
- Employer Contributions: May be subject to a vesting schedule. Only the vested portion can be divided unless otherwise agreed.
During QDRO drafting, it’s critical to distinguish between vested and non-vested funds. Some spouses mistakenly assume they’re entitled to the total balance, only to find out part of the employer money is unvested and therefore excluded.

