Employee Contributions vs. Employer Contributions
The first thing to determine is what portion of the account is marital and when the participant began contributing. 401(k) plans typically include:
- Employee contributions: These are deducted from the participant’s paycheck and are always 100% vested.
- Employer contributions: These may be subject to a vesting schedule. If the employee leaves the company before fully vesting, the non-vested portion is forfeited and can’t be divided.
The QDRO should clearly state whether only the vested portion is subject to division and how forfeitures will be handled if funds are lost due to participant termination or plan changes.

