Employee and Employer Contributions
401(k) plans typically include:
- Employee Contributions: These are fully vested and belong to the employee immediately.
- Employer Contributions: These are often subject to a vesting schedule. Only the vested portion can be divided in divorce.
When drafting the QDRO, it’s critical to distinguish between these contribution types. If you’re the alternate payee (the spouse receiving a share), you can’t claim unvested funds. The order must clearly specify whether the division will apply to the total account or only to vested amounts as of a certain date—typically the date of divorce or separation.

