Employee and Employer Contributions
401(k) accounts often include both employee contributions (always 100% vested) and employer contributions (which may be subject to a vesting schedule). A proper QDRO must state whether the division includes both types and needs to be drafted to consider how much of the employer match is actually vested at the date of division.
If the spouse is awarded “50% of the account,” it’s important to ask: “50% of what?” – just the employee portion, or also the employer portion? And if the employer portion is partially unvested, does the QDRO allow for adjusting the award if additional vesting occurs post-divorce?

