1. Employee vs. Employer Contributions
401(k) accounts are funded by both employee deferrals and employer contributions, which may be fully or partially vested. One of the first questions we help clients resolve is what portion of the account is divisible. This typically depends on:
- When the contributions were made
- The marital period
- Whether vesting schedules impact the employer portion
In most divorces, the marital portion includes employee deferrals and any employer match earned during the marriage. However, unvested employer funds may not be divisible unless they later vest. In those cases, we may include reallocation language in the QDRO in case those funds vest later and become subject to division.

