Employee and Employer Contributions
Typically, the employee contributes to the 401(k) through payroll deductions. Some employers also make matching or non-matching contributions. In the divorce context:
- Only vested employer contributions are divisible.
- Unvested or forfeited employer contributions usually belong solely to the employee spouse unless otherwise agreed to.
- The QDRO can specify a division based on a percentage (e.g., “50% of the marital portion”) or a dollar amount.
A good QDRO must clearly define the marital portion, particularly for long-term employees or contributions made both before and during the marriage.

