Employee vs. Employer Contributions
The participant’s 401(k) account likely includes both employee salary deferrals and discretionary employer contributions. While employee contributions are always fully vested, employer contributions may be subject to a vesting schedule based on years of service.
In your QDRO, we recommend clearly separating the division of:
- Employee deferrals – usually 100% vested and eligible for division
- Employer contributions – divisible only to the extent they are vested as of the cut-off date (often the date of separation or date of divorce)
If employer contributions are only partially vested, any non-vested portions may revert to the plan when the participant leaves employment. This is why it’s crucial to include language in your QDRO that limits the alternate payee’s share to the vested portion.

