1. Division of Employee and Employer Contributions
401(k) plans consist of two main elements: employee deferrals and employer matching. In a divorce, you can typically divide both portions—however, only the amounts that are vested belong to the participant. Unvested employer contributions typically remain with the plan unless otherwise negotiated.
When drafting your QDRO, we review the participant’s vesting schedule and request plan statements to determine what can be awarded, which may involve:
- Equal percentage division of vested balances
- Flat dollar award to the alternate payee
- Pro-rata calculation over a specific time period (such as the marriage dates)

