1. Employee and Employer Contributions
Many employees contributed to their 401(k) plans via salary deferrals. The employee portion is usually fully vested and available for division in a divorce. However, employer contributions may not be fully vested—especially if the participant recently started employment.
The QDRO needs to clarify how employer contributions are to be treated. If the participant is not fully vested, any non-vested portion will be forfeited and isn’t available to be awarded to the alternate payee. The order should be written with language that accounts for this possibility to prevent misunderstandings.

