Employee and Employer Contributions
Most 401(k) plans consist of two parts: employee contributions and employer contributions. In divorce, both may be divided—but employer contributions may be subject to a vesting schedule. It’s critical that your QDRO specifies whether the alternate payee receives a share of:
- Only marital contributions
- Marital contributions plus investment gains or losses
- All vested amounts as of a fixed date
If the employer’s contributions aren’t fully vested at the date of divorce, the QDRO should address how forfeitures are handled. Your attorney may request participant statements or plan summaries to determine what portions are divisible.

