1. Employer Contributions and Vesting
Employee contributions to a 401(k) are always 100% vested. However, employer matching or profit-sharing contributions might be subject to vesting rules. If a participant divorces before becoming fully vested, the non-employee spouse may only receive the vested portion.
In QDRO drafting, it is crucial to:
- Clarify what portion of the account is marital property
- Specify that only the vested portion is being divided, if that’s the case
- Identify valuation date to determine the balance at the time of division

