Employee and Employer Contributions
The portion of the 401(k) made up of the participant’s own contributions is always considered fully vested and will be subject to division in a divorce if it was earned during the marriage. However, employer contributions are often subject to a vesting schedule. If the employee hasn’t met the years-of-service requirement, some of the employer contributions may not be fully vested. These unvested amounts can’t be included in the QDRO award to the alternate payee (usually the former spouse).
Our QDRO drafts for plans like the Encore Management and Development 401(k) Plan account for employer contribution vesting and ensure the terms reflect only what the alternate payee is eligible to receive.

