Employee and Employer Contributions
401(k) plans often include both contributions made by the employee and matching or discretionary contributions from the employer. It’s important to separate:
- Employee deferrals (usually 100% vested and always marital if earned during the marriage)
- Employer contributions, which may be subject to vesting schedules
If your former spouse was not fully vested at the date of divorce, some of the employer contributions may not be divisible. A clear QDRO should spell out whether unvested amounts are to be included or excluded, depending on the court’s order.

