Employee and Employer Contributions
In most 401(k) plans, contributions come from both the employee and the employer. While employee contributions are always 100% vested, employer contributions may follow a vesting schedule. A QDRO can only divide the vested portion of the account. It’s critical to:
- Identify the percentage of the account that was vested as of the date of separation or divorce
- Exclude or account for any unvested employer contributions in the order
If a participant is not fully vested at the time of divorce, the alternate payee (usually the former spouse) may lose out on the unvested amounts if the participant leaves the employer before full vesting occurs. That’s why many QDROs use language that awards a percentage of the vested balance only.

