Dividing Contributions: Employee vs. Employer
401(k) plans are typically funded by both employee deferrals and employer matching or profit-sharing contributions. In a divorce, all contributions earned during the marriage are usually considered marital property—but employer contributions can bring complications if there’s a vesting schedule.
- Employee Contributions: These are fully vested immediately and can be divided without restriction.
- Employer Contributions: These may be subject to a vesting schedule. If some are unvested, your QDRO should clearly address what portion the alternate payee (the non-employee spouse) receives.
We draft language that protects your interest if previously unvested amounts become vested after the divorce—but only if your QDRO is worded properly.

