1. Employee vs. Employer Contributions
Employee contributions are easier to handle—they are typically 100% vested by default. But employer contributions are a different story. Many 401(k) plans use vesting schedules, which means some of the employer-added funds may not yet “belong” to the employee at the time of divorce.
In your QDRO, it’s critical to address whether only vested balances will be divided, or if a later share of vesting should be allocated to the alternate payee. We often recommend language that captures both pre-divorce and post-divorce vesting, depending on the client’s strategy.

