Employee and Employer Contributions
401(k) plans usually include both employee deferrals (the portion deducted from each paycheck) and employer contributions (if offered). In most divorces, the marital portion of each is split, but that assumes employer contributions are vested. Here’s what that means:
- Employee contributions: Typically 100% vested and divisible.
- Employer contributions: May have a vesting schedule. Only vested amounts can be divided in divorce.
If employer contributions aren’t fully vested, any unvested portion is generally excluded from the QDRO. But make sure your QDRO includes language that gives the alternate payee rights to future vesting for the period before the divorce. We include this wherever it’s appropriate.

