Employee and Employer Contributions
Any contributions made directly by the employee (your ex or soon-to-be-ex-spouse) are immediately theirs to divide, assuming they were made during marriage. Employer contributions are a different story—they’re subject to vesting rules.
In your QDRO, you’ll need to decide:
- Whether to divide a fixed dollar amount or a percentage of the account
- Whether gains and losses until distribution will be included
- How to treat employer contributions that are not 100% vested
If the employee isn’t fully vested, their spouse may not be able to access some of the employer’s matching funds. Instead of fighting over unvested assets, we often recommend including flexible language in the QDRO that allows the alternate payee to receive any newly vested amounts later.

