1. Employee vs. Employer Contributions
Most 401(k) balances consist of two types of contributions:
- Employee Contributions: These are always 100% vested. A QDRO can award the alternate payee a portion of these funds as of a specific date (commonly the date of separation or divorce).
- Employer Contributions: These are subject to a vesting schedule. If your spouse has not yet met the time-based requirements, some—or all—of the employer match may be unvested and not available for division.
Your QDRO should clearly define whether it includes just the vested portion or gives you a set percentage of all contributions that become vested in the future. We often recommend language that includes future vesting, as long as it fits the divorce judgment.

