Employee and Employer Contribution Division
When dividing a 401(k), both employee and employer contributions can be included. However, one critical issue to address is whether some of these contributions are unvested. If the plan participant hasn’t worked long enough to become fully vested in the employer’s contributions, the alternate payee (usually the former spouse) may not be entitled to those unvested funds.
A well-drafted QDRO should make this clear—either limiting payments to only vested amounts at the time of divorce or setting the division to include future vesting if real-time division is preferred. We usually recommend awarding only the vested portion to avoid future complications.

