1. Unvested Employer Contributions
In many 401(k) plans, employer contributions vest over time. If the employee hasn’t met the service requirement to be vested, a portion of the employer’s contributions might be forfeited upon termination. This matters in a divorce—because only the vested portion of employer contributions is available for QDRO division.
If your QDRO attempts to divide unvested assets, the non-employee spouse (the “Alternate Payee”) could end up with less than expected. Be specific and clear about how to treat unvested balances. We often recommend language that allows for proportional adjustment if the participant doesn’t stay employed long enough to fully vest.

