Employee vs. Employer Contributions
401(k) plans typically include both employee contributions and employer matching or profit-sharing contributions. A key issue in QDRO drafting is determining how to divide these contributions—especially when employer contributions are subject to a vesting schedule.
- Employee contributions are fully owned by the participant and are always divisible.
- Employer contributions may be partially or fully unvested, meaning only a portion is divisible depending on the participant’s length of employment.
The QDRO should clearly state whether it includes just vested amounts or a proportional share of employer contributions that may vest in the future. Make sure to request a participant’s most recent benefit statement to review the vesting schedule.

