1. Dividing Employee vs. Employer Contributions
Many 401(k) plans, especially profit-sharing ones, include both salary deferrals (employee contributions) and contributions made by the employer. These amounts may not all be fully vested, which directly affects how much is available for division during divorce.
- Employee contributions: These are fully vested and part of the divisible account.
- Employer contributions: These can be subject to a vesting schedule and may not fully belong to the participant if they leave the company early.
In a QDRO, we always clarify that only “vested” employer contributions are divisible. If you’re unsure about the vesting for your plan, we can help confirm it before drafting the order.

