Vesting Schedules and Forfeitures
The vesting schedule—the timeline on which employer contributions become the employee’s property—is one of the most commonly misunderstood parts of dividing a 401(k). If the employee only worked a few years, it’s likely that some of the employer contributions are still unvested and thus ineligible for division. In many plans, unvested contributions are forfeited if the employee leaves the company.
We recommend requesting a copy of the Summary Plan Description or a participant statement to determine what portion of the account is vested. The QDRO can be written to assign only the vested part, or may state that future vesting of contributions (earned up to the divorce date) should be included too—depending on the drafting strategy you choose with your QDRO attorney.

