Employee and Employer Contributions
The typical 401(k) has two main sections: the money that the employee contributed from their paycheck (which is always 100% vested), and the amount contributed by the employer (which may have a vesting schedule). A proper QDRO for the Training and Research Foundation 401(k) Profit Sharing Plan (restated Money Purchase Pension Plan) must identify whether the alternate payee (usually the former spouse) should receive a portion of:
- Only the vested employer contributions
- The entire account balance including future vesting
- Just the employee contributions
In divorce, we typically recommend granting the alternate payee a percentage of the “vested” account balance as of the cutoff date. This avoids arguments over evolving balances or unvested amounts in the future. Choosing the correct language is essential.

