Employee and Employer Contribution Division
With 401(k) plans, both the employee and sometimes the employer make contributions. In divorce cases, you’ll need to address:
- How to divide employee contributions (typically fully vested)
- Whether employer contributions are included and whether they are vested or forfeitable
- The treatment of any post-separation account growth
It’s common to use a coverture approach—dividing the marital portion of the account based on the time the participant was married and participating in the plan. Be sure to factor in both types of contributions and clarify what date to value the account for division purposes (e.g., date of separation, judgment, or distribution).

