1. Employee and Employer Contributions
Many divorcing spouses aren’t aware that the total 401(k) balance may include both employee contributions (which are almost always 100% vested) and employer contributions (which may be subject to a vesting schedule). For the Src Affiliated Profit Sharing 401(k) Plan, it’s critical to determine:
- Which funds are vested and available for division
- How forfeitures of unvested employer contributions will be treated
- Whether the division will be based on a percentage, fixed dollar amount, or formula tied to the date of separation or divorce
Unvested employer contributions cannot usually be awarded to a former spouse in a QDRO because they aren’t technically owned by the participant yet. Your QDRO should clearly state that only vested amounts are to be divided, and reference the plan’s vesting schedule if needed.

