1. Employee vs. Employer Contributions
When dividing a 401(k) in divorce, it’s crucial to distinguish between employee and employer contributions. The participant’s salary deferrals are always 100% vested, but employer contributions may be partially unvested depending on tenure and plan rules.
If the alternate payee (typically the ex-spouse) is to receive a percentage of the account, we recommend stating clearly whether that includes:
- Only employee contributions
- Employee plus vested employer contributions
- The entire balance, including any future vesting rights
Most QDROs for the Surdex Corporation 401(k) Profit Sharing Plan should avoid assigning unvested funds, as the alternate payee cannot collect what has not been earned under the plan’s rules.

