1. Employee and Employer Contributions
401(k) plans typically include both employee salary deferrals and employer matching or profit-sharing contributions. It’s not uncommon for a divorcing couple to assume everything is on the table. However, only vested amounts are subject to division.
- Employee contributions are always 100% vested and can be divided easily.
- Employer contributions may be subject to a vesting schedule, which means some or all of it might not be divisible unless fully vested at the time of divorce.
We advise clearly stating in the QDRO whether it applies to the vested balance as of a certain date (typically the date of divorce or separation), or whether it includes post-divorce gains and losses. Each choice can significantly affect the outcome.

