Employee vs. Employer Contributions
A common mistake is assuming that all funds in a 401(k) are automatically subject to division. However, employer contributions may be subject to a vesting schedule. Only the vested portion at the time of divorce is considered divisible. The QDRO should clearly distinguish between:
- Employee elective deferrals (typically 100% vested right away)
- Employer matching or profit-sharing contributions (often subject to the plan’s vesting schedule)
If the participant has unvested employer contributions, these will not be assigned to the alternate payee unless they vest before plan division, or unless the QDRO includes conditional language addressing future vesting.

