Dividing Employee vs. Employer Contributions
401(k) plans typically include two types of contributions: those made by the employee and those made by the employer. When drafting a QDRO, it’s important to clarify whether the division applies to just the employee’s contributions or both:
- Employee contributions are always considered marital property if made during the marriage.
- Employer contributions might not be fully vested at the time of separation or divorce. This means the non-employee spouse may only be entitled to the vested portion.
If the employer’s contributions aren’t fully vested at the time of the divorce, they may later be forfeited—and the alternate payee won’t be able to claim that unvested portion. This needs to be disclosed and worked into how the division is written.

