1. Employee and Employer Contributions
401(k) accounts typically include both employee salary deferrals and employer matching or profit-sharing contributions. In divorces, each portion needs to be reviewed:
- Employee Contributions: These are always 100% vested and are fully divisible by a QDRO.
- Employer Contributions: These may be subject to vesting schedules. Only the vested portion as of the division date is available for distribution to the alternate payee.
If the participant hasn’t met years-of-service requirements for full vesting, some employer contributions may be forfeited. The QDRO should clarify that only “vested benefits” are subject to division. We handle this distinction in our drafting process so you don’t accidentally divide unavailable assets.

