1. Employee and Employer Contributions
401(k) plans typically include a portion that the employee contributes directly (pre-tax or post-tax Roth) and a portion that the employer contributes—often subject to a vesting schedule. Your QDRO must specify whether the alternate payee (usually the former spouse) is receiving a portion of:
- Just the employee’s contributions
- Both employee and vested employer contributions
- Plan earnings and/or losses on those amounts through distribution
It’s common to overlook that employer matching contributions might not be fully vested at the time of divorce. This matters because the QDRO can’t grant what the participant doesn’t own yet under the plan rules.

