Dividing Employee and Employer Contributions
401(k) plans include both employee deferrals and employer contributions. In divorce, both types can usually be divided, but it’s critical to determine what’s included:
- Employee Contributions: These are fully vested and always divideable.
- Employer Contributions: These are often subject to a vesting schedule. Unvested amounts are typically forfeited if the employee leaves the company prematurely. A well-drafted QDRO will specify how to handle those contingencies.
Always confirm the plan’s vesting status at the time of divorce. You don’t want to assign funds that won’t be there later.

