1. Dividing Employee vs. Employer Contributions
One of the first key issues to determine in dividing a 401(k) is whether the QDRO will split just the marital portion, or the entire account. Within that division, you also need to consider:
- Employee contributions (always 100% vested)
- Employer matching or profit-sharing contributions (subject to a vesting schedule)
If part of the employer contribution is not vested as of the date of divorce or QDRO, that portion may be forfeited and not available to divide. The QDRO should clarify whether the alternate payee is entitled to only vested amounts or also to future vesting.

