Employee and Employer Contribution Divisions
This 401(k) likely includes both employee deferral amounts and employer matching or profit-sharing contributions. A common pitfall in drafting is failing to allocate employer contributions correctly—especially when vesting rules apply. If some of the employer contributions are unvested at the time of divorce, they may eventually be forfeited and unavailable for division.
Ensure your QDRO clearly states:
- Whether the alternate payee is entitled to a percentage or fixed dollar amount of the account
- If the award includes earnings (gains or losses) from a specific valuation date
- Whether only vested amounts are divided, or whether future vesting of employer contributions is included

