Employee and Employer Contribution Divisions
Most 401(k) plans allow both the employee and the employer to contribute. In divorce, both of these components are typically marital assets subject to division. However, employer contributions may come with vesting schedules —which means not all employer funds may belong to the plan participant unless they’ve remained employed for a certain time.
When drafting a QDRO, it’s important to:
- Clarify whether the alternate payee receives a flat dollar amount or a percentage of the total account
- Specify whether the division includes vested employer contributions only or also attempts to allocate unvested portions if they later vest

