Employee vs. Employer Contributions
Employee contributions to a 401(k) are always fully vested and part of the marital estate. However, employer contributions may be subject to vesting. If the participant hasn’t met the service requirements, unvested amounts will revert back to the employer and cannot be divided.
When drafting the QDRO, we ensure it includes language that accounts for:
- Determining the value as of a specific date (typically the date of separation or divorce)
- Excluding unvested funds if necessary
- Stating how gains or losses should be applied between that date and the date of distribution

