1. Determining Which Contributions Are Divisible
First, it’s important to separate what part of the account is marital property. That usually depends on when the contributions were made and how the funds grew during the marriage. The plan may include:
- Employee pre-tax contributions: Typically all divisible if made during the marriage.
- Employer contributions: May be subject to a vesting schedule. If the participant isn’t fully vested, the alternate payee may only have a right to a portion of those employer funds.
- After-tax or Roth contributions: Need to be specifically identified and divided appropriately since they have different tax treatments.
Accurately dividing vested vs. unvested funds is critical—some divorcing spouses mistakenly assume they’re entitled to the entire balance even when portions aren’t vested or were earned before the marriage. That’s a mistake we help you avoid.

