Employee and Employer Contributions
401(k)s include both employee contributions (your spouse’s deferrals from paychecks) and often employer matching or profit-sharing contributions. The key question is whether employer contributions are vested. Many employers use a vesting schedule (e.g., 20% per year over 5 years). If the participant is not fully vested at the time of divorce, any amounts subject to forfeiture may not be allocated to the alternate payee (you or your spouse).
Your QDRO should clearly state that it only divides vested amounts, unless the plan administrator allows division of unvested benefits that could later vest. We always recommend verifying vesting status before drafting the QDRO.

