Employee and Employer Contributions
401(k) accounts typically include both employee contributions (which are always 100% vested and belong to the participant) and employer contributions (which may be subject to a vesting schedule). In a QDRO, we usually divide the total account balance as of a specific date—often the date of marital separation or date of divorce.
- If the participant has non-vested employer contributions, the alternate payee may only receive a share of the vested portion unless the plan allows for later vesting.
- We recommend using a coverture (marital) fraction to divide contributions made during the marriage. This avoids disputes over pre-marital or post-divorce contributions.

