1. Employee and Employer Contributions
Most 401(k) accounts consist of employee salary deferrals and potentially employer matching or profit-sharing contributions. These may not all be fully vested—meaning some of the employer-funded portion may not legally belong to the employee unless certain service requirements are met.
- Employee Contributions: Always fully vested, and thus always divisible.
- Employer Contributions: May be subject to vesting. Unvested amounts are typically forfeited upon separation or termination and may not be divisible.
The QDRO must clearly define how the employer-funded and vested amounts are handled. If the employee-spouse is not 100% vested, don’t assume the alternate payee can get 50% of everything. We often specify “50% of the vested account balance as of the date of divorce” to make this clear.

