1. Dividing Employee vs. Employer Contributions
With 401(k) plans, participants often receive both employee and employer contributions. While employee deferrals are always owned by the participant, employer contributions may be subject to a vesting schedule. Your QDRO must address:
- Whether both employee and employer portions are included in the division
- If employer contributions are unvested, whether they’ll be forfeited or tracked for future vesting
Be careful with language. Some plans will distribute only vested balances at the time of division, while others allow for future adjustments if additional vesting occurs.

