Employee and Employer Contributions
Most 401(k) plans are made up of employee salary deferrals and employer contributions. A QDRO needs to make it very clear whether the alternate payee is receiving a portion of:
- Only the employee’s contributions
- The entire account balance (including employer matching or profit-sharing contributions)
- Contributions accrued during the marriage (frequently used in community property states like California)
If employer contributions are included, make sure to confirm whether any part is unvested at the time of the divorce, especially if the divorce is early in employment. Unvested funds may be forfeited, and your QDRO should address what happens in that case.

