1. Employee vs. Employer Contributions
The first thing to understand is what type of funds are in the account. 401(k) plans often include:
- Employee contributions —deferrals from the participant’s paycheck
- Employer contributions —including matching and discretionary amounts
Only vested employer contributions can be divided. That’s a major consideration if employer contributions haven’t fully vested at the time of the divorce—or if the participant leaves their job shortly afterward, potentially forfeiting some of those funds. A properly drafted QDRO can address this by dividing both vested and forfeitable balances, specifying what happens if forfeitures occur later.

