Employee vs. Employer Contributions
This 401(k) plan likely includes both employee salary deferral contributions and employer profit-sharing contributions. In general, QDROs divide only the earned or vested portion of these funds as marital property. However, significant attention must be paid to:
- The cut-off date defined in your divorce judgement (e.g., date of separation, date of filing)
- Which types of contributions are included in the division
- Treatment of gains/losses after the division date
We recommend identifying the specific division approach in your divorce agreement—whether it’s a flat dollar amount or percentage of account balance—to avoid disputes when the QDRO is drafted.

