1. Employee vs. Employer Contributions
In most 401(k) plans, employee contributions are fully vested and belong to the plan participant. Employer contributions, however, often follow a vesting schedule. If your divorce is happening during employment, you’ll need to consider:
- Which portions of the employer contributions are vested as of the divorce date
- The valuation date used to determine division
- How any unvested amounts are handled in the QDRO
The QDRO should clearly state that the alternate payee is entitled only to the vested portion of the participant’s account unless the couple agrees otherwise. In some cases, we’ve seen QDROs mistakenly award 50% of the full account balance—resulting in disputes when the plan administrator refuses to process the order.

