Employee and Employer Contributions
One of the first issues in dividing a 401(k) plan is understanding which portions of the account are divisible. In most cases:
- Employee contributions are always divisible as part of the marital estate.
- Employer contributions may be partially or fully unvested, making them inaccessible to the alternate payee until vesting occurs—if at all.
We often recommend including language in the QDRO specifying that only the vested portion of employer contributions as of the marital cutoff date is available for division.

