1. Contributions: Employee vs. Employer
When dividing a 401(k), it’s important to distinguish between what the employee contributed and what the employer added. In many cases, only the contributions made—and vested—during the marriage are subject to division.
- Employee Contributions: Typically 100% vested immediately and eligible for division based on the marital timeframe.
- Employer Contributions: Often subject to a vesting schedule.
If the employer contributions aren’t fully vested at the time of divorce, an experienced QDRO drafter can include specific language to address what happens if those funds vest in the future, or if they are forfeited upon termination of employment. A poorly drafted order could leave the alternate payee with less than intended.

