Employee and Employer Contributions
401(k) profit sharing plans typically include both employee salary deferrals and employer contributions. It’s vital to distinguish between:
- Employee Contributions: These are fully vested and can be divided in a QDRO based on of the marital portion.
- Employer Contributions: These may be subject to a vesting schedule. Any unvested funds as of the cut-off date in the QDRO are typically excluded.
We often see confusion here. If the employee has only partially vested employer contributions as of the divorce date, the QDRO must clearly state that only vested benefits will be allocated to the alternate payee. Otherwise, it may be rejected or lead to disputes later on.

