1. Employee vs. Employer Contributions
Most 401(k) plans, including the English Language Institute in China 403(b) Plan, contain both employee contributions (money contributed by the participant) and employer contributions (possibly matching funds or discretionary amounts). Not all of these funds are automatically part of a divorce division. You’ll need to determine:
- Which contributions are marital vs. separate property
- Whether employer contributions were vested at the time of separation or divorce
If some of the employer contributions were not yet vested when the divorce occurred, the alternate payee is not entitled to them under most QDRO arrangements. The QDRO must specify whether unvested funds are excluded completely or whether the alternate payee will share in future vesting.

