Employee vs. Employer Contributions
401(k) plans typically include amounts the employee personally deferred from their paycheck as well as contributions from the employer. In a divorce, both types of contributions are generally marital assets – but only what’s accrued during the marriage is subject to division.
The QDRO should clearly separate:
- Employee deferrals earned during the marriage
- Employer contributions earned during the marriage, keeping in mind the vesting schedule
Unvested employer contributions often raise questions. If the participant leaves employment shortly after divorce, the unvested amounts may be forfeited. We recommend adding “if, as, and when” clauses that condition the spouse’s share on vesting and plan valuations.

