Employee and Employer Contributions
A key issue in dividing 401(k) plans is determining what funds are actually divisible. While employee contributions are 100% vested, employer contributions may be subject to a vesting schedule. It’s critical to determine:
- When the participant enrolled in the plan
- Whether any employer match or discretionary contributions were made
- The current vesting schedule used by the plan
If part of the employer contributions is unvested at the time of the divorce, they may be forfeited if the participant ends employment before vesting. The QDRO should not award the unvested amounts to the alternate payee unless the intention is to allocate a share of future vesting. Be very cautious here—this is a common QDRO mistake. You can learn more about why it matters at our page oncommon QDRO mistakes.

