Employee vs. Employer Contributions
Participants typically contribute pre-tax or Roth dollars to 401(k) accounts, while employers offer matching or discretionary contributions. A QDRO must clearly state what portions are to be divided. Some options include:
- Splitting the total balance as of a specific date
- Dividing only the marital portion—defined as the amount accumulated from the date of marriage to the date of separation or divorce
Be cautious: if the participant has employer contributions that are not yet fully vested, the alternate payee (the spouse receiving the benefit) may not be entitled to these amounts. The QDRO can address how future vesting is handled, but it requires careful drafting.

