1. Employee vs. Employer Contributions
Most 401(k) plans include both employee salary deferrals and employer contributions. In many cases, employer contributions are subject to a vesting schedule. You need to determine:
- What portion of employer contributions are vested as of your divorce date?
- Will the division include only vested amounts?
- Will forfeited amounts (non-vested) be excluded from the alternate payee’s share?
The QDRO must be drafted to reflect these nuances clearly, especially since contributions that aren’t fully vested could be lost after the divorce.

