1. Employee vs. Employer Contributions
This 401(k) plan likely includes both employee-made contributions and employer matching amounts. While employee contributions usually belong entirely to the participant, employer contributions are often subject to a vesting schedule. Only vested account balances can be divided.
In your QDRO, it is critical to
- Identify whether the assignment includes just vested amounts or also potentially includes forensic tracing of unvested contributions;
- Clarify the cut-off date for determining how much of the employer match is considered marital property;
- Determine how to handle future vesting, if applicable, especially if the divorce happens close to a vesting milestone.

