Employee vs. Employer Contributions
The first step is determining what portion of the 401(k) is considered marital property. Participant contributions (money the employee puts in) are typically vested instantly, but matching or profit-sharing contributions made by the employer may be subject to a vesting schedule.
If the participant isn’t fully vested in the employer match, a portion of that match could be non-marital property. It’s vital to find out the participant’s vesting percentage as of the date of division to avoid awarding the non-participant spouse more than they are legally entitled to.

