Employee and Employer Contributions
In most cases, both the employee (participant) and the employer contribute to the 401(k) plan. However, employer contributions may be subject to a vesting schedule. This means only some of what’s been added by the employer may legally belong to the participant—and therefore could be excluded from what the former spouse receives.
In drafting a QDRO, we must determine:
- How much of the employer match was vested as of the date of division
- Whether contributions after that date should be included or excluded
- If unvested employer funds should be assigned, understanding they may be forfeited later

