Employee vs. Employer Contributions
401(k) plans include both employee and employer contributions. In most divorces, the marital share includes both types—but watch out for forfeiture rules on unvested employer contributions.
- Employee Contributions: These are fully owned by the employee and are always divisible in a QDRO.
- Employer Matching/Profit Sharing: These might be subject to a vesting schedule. If the employee spouse isn’t fully vested, a portion of the account may not be divided and could eventually be forfeited.
We recommend explicitly stating in the QDRO whether unvested employer contributions should be included or excluded—and what happens if they vest later after the divorce.

