1. Employee vs. Employer Contributions
It’s important to look closely at whether contributions came from the employee, the employer, or both. Most 401(k) plans include both:
- Employee Contributions: These are typically fully vested immediately and can be divided without complication.
- Employer Matching or Profit Sharing Contributions: These may be subject to a vesting schedule. If the participant isn’t fully vested, any unvested amounts may be forfeited and not available for division.
When drafting your QDRO, you’ll want to clarify whether only vested funds should be divided or whether the alternate payee is entitled to a fixed percentage of the total account, including any future vesting.

