1. Employee and Employer Contributions
401(k) balances typically include two sets of contributions:
- Employee contributions: These are generally always fully vested and belong to the participant.
- Employer contributions: Subject to a vesting schedule. The QDRO can only divide what was vested as of the cutoff date (often the date of separation or divorce).
If an employer contribution was not yet vested by that date, it legally cannot be awarded to the alternate payee. It’s critical to identify the precise date for calculating the marital portion.

