1. Employee and Employer Contributions
401(k) plans like this one typically include:
- Employee deferrals (contributions directly from paychecks)
- Employer matching or profit-sharing contributions
In a divorce, all contributions and earnings during the marriage are generally considered marital property. However, how much of the employer’s contributions have actually vested is critical. Unvested amounts may be forfeited when the participant leaves the company and will not be available for division.
Make sure your QDRO specifies how to treat both employee and employer contributions. If the participant is still employed and unvested amounts may eventually vest, you need to clearly state whether the former spouse should receive a share of future vesting or only what’s currently available.

