Employee and Employer Contributions
Employee contributions to a 401(k) are always fully vested. However, employer matching or discretionary contributions may be subject to a vesting schedule. When preparing a QDRO, it’s critical to determine how much of the employer’s contributions the participant has vested in—and exclude any unvested portions from division.
If your spouse’s plan includes both pre-tax and Roth contributions, you must specify how each account is to be divided. Roth portions grow tax-free, while traditional 401(k) balances are taxed upon distribution. A good QDRO should either allocate these account types proportionally or specify exact treatment.

