Employee and Employer Contributions
In most 401(k) plans, the participant’s contributions belong fully to them. But employer contributions are often subject to a vesting schedule. That means a portion (sometimes all) of the employer contributions could be forfeited if the participant isn’t yet fully vested. When drafting a QDRO, it’s critical to:
- Determine the participant’s vesting schedule
- Calculate the marital share based only on vested amounts as of the cutoff date
- State explicitly whether post-divorce contributions and earnings are included

