Employee vs. Employer Contributions
One of the first things you need to understand is what’s available to divide. 401(k) plans typically include:
- Employee contributions (usually 100% vested)
- Employer matching or discretionary contributions (subject to vesting)
In cases where the participant is not fully vested in the employer’s contributions, any unvested portion will be forfeited and unavailable to the alternate payee (the spouse receiving a share). Timing matters here—vesting is determined at the date of division, which must be carefully specified in the QDRO.

