1. Understanding Employee and Employer Contributions
401(k) plans usually include two types of contributions: salary deferrals made by the employee and matching or discretionary contributions made by the employer. In divorce, both are considered marital property—depending on when they were earned.
- Employee Contributions: These are usually 100% vested, which means they’re immediately divisible in a QDRO.
- Employer Contributions: These may not be fully vested. If the employee is not 100% vested at the time of divorce or QDRO approval, the unvested portion may be forfeited depending on the plan’s vesting schedule. An experienced QDRO attorney will address this in the order to avoid overpromising distribution amounts.

