1. Employee vs. Employer Contributions
Not all funds in a 401(k) are created equal. An employee’s own salary deferrals are 100% theirs, but employer contributions may come with a vesting schedule. If a spouse is awarded a portion of the account, the QDRO must clearly define whether it includes just vested account balances or anticipates future vesting.
We often recommend specifying only “vested” employer contributions as of a certain date (often the date of separation or divorce filing), unless the court orders otherwise. Trying to award unvested funds can cause denial by the plan administrator.

