1. Employee vs. Employer Contributions
401(k) plans often contain two parts: what the employee puts in (always fully vested) and what the employer contributes (may be subject to vesting). During divorce, it’s critical to determine:
- Which earnings and contributions were made during the marriage
- Whether employer contributions are vested or partially vested
- Whether to divide only marital contributions or the full account balance
For this plan, any unvested employer contributions could be forfeited if the employee leaves the organization. We help clarify which amounts are secure and which are not as part of our drafting process.

